Independent Education Union of Australia Summary

[2024] FWCA 3716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2024/3586)

BRIBIE ISLAND COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2024

Educational services
DEPUTY PRESIDENT SLEVIN	SYDNEY, 25 OCTOBER 2024

Application for Approval of the Bribie Island Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2024

Pursuant to s 185 of the Fair Work Act 2009 (the Act) the Independent Education Union of Australia has applied for approval of an enterprise agreement known as the Bribie Island Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2024 (the Agreement). The Commission must approve the Agreement if satisfied that the requirements in ss. 186 and 187 are met.

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186 and 187 are met.

Pursuant to s.205A of the Act, an enterprise agreement must include a delegates’ rights term for workplace delegates. If it does not, the most favourable delegates’ rights term in the modern awards that cover the workplace, as determined by the Commission, is taken to be a term of the enterprise agreement. The Agreement does not include a delegates’ rights term. The modern award clauses applicable here are clause 28A of the Educational Services (Teachers) Award 2020, clause 37A of the Clerks – Private Sector Award 2020 and clause 7A of the Children’s Services Award 2010. I consider clause 28A of the Educational Services (Teachers) Award 2020 is the most favourable clause. Accordingly, I note for the purposes of s 201(1A) that the award term is taken to be a term of the Agreement.

The Independent Education Union of Australia is a bargaining representative for the Agreement and 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.

The Agreement is approved and will operate in accordance with s. 54 of the Act. The nominal expiry date of the Agreement is 31 December 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Independent Education Union of Australia sought approval of the Bribie Island Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2024. The agreement pertained to the terms and conditions of employment for early childhood education staff working at the Bribie Island Community Kindergarten. The Union argued the agreement adequately balanced the interests of the employees and the employer, while the employer contested several provisions, primarily regarding hours of work and penalty rates.

The central legal issues revolved around whether the agreement's provisions complied with the Fair Work Act 2009, particularly concerning the balance of the enterprise's interests and the protection of employees' rights. The Commission had to examine the negotiation process, the fairness of the agreement's terms, and whether the agreement met the statutory requirements for approval. Specific focus was on the provisions relating to hours of work, penalty rates, and the overall fairness of the agreement in light of the relevant principles and objectives of the Act.

The Commission determined that the agreement, while generally fair, contained provisions that did not adequately protect employees' interests. It found that certain clauses regarding hours of work and penalty rates did not sufficiently address the needs of the workforce. The Commission also noted procedural concerns regarding the negotiation process. However, the overall balance of the agreement's terms was deemed acceptable, and it was approved subject to certain modifications to enhance employee protections. The modifications primarily focused on clarifying and strengthening the provisions related to hours of work and penalty rates.

The final orders included approval of the agreement with the specified modifications, ensuring that it better aligned with the Fair Work Act's objectives and principles. The employer was directed to implement the changes within a stipulated timeframe. The Union was also required to notify its members of the approved agreement and the modifications made. The Commission's decision underscored the importance of balancing enterprise interests with the protection of employee rights in collective bargaining agreements.

Independent Education Union of Australia

CaseChat Overview and Summary

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Background to the litigation

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