Independent Education Union of Australia

[2024] FWCA 3444

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Independent Education Union of Australia

(AG2024/2981)

LOWOOD & DISTRICT COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER DURHAM	BRISBANE, 2 OCTOBER 2024

Application for approval of the Lowood & District Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Lowood & District Community 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). It has been made by Independent Education Union of Australia (the Applicant). The Agreement is a single enterprise agreement.

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.

I note the undertakings were provided in relation to the following:

flexible working arrangements – clause 1.11
shift penalties - non teacher

to the undertakings referred to above, 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.

The Agreement does not contain a delegates’ rights term compliant with the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Educational Services (Teachers) Award 2020 is taken to be a term of the Agreement.

I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

flexible working arrangements – clause 1.11

However, noting clause 1.2.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Independent Education Union of Australia – Queensland and Northern Territory Branch (IEU) 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 IEUA.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved the Independent Education Union of Australia and the Lowood & District Community Kindergarten. The union sought approval of the Early Childhood Education Collective Enterprise Agreement 2024. The dispute centred on whether the agreement met the requirements of the Fair Work Act 2009. The Commission was tasked with determining if the agreement complied with the procedural and substantive fairness provisions set out in the legislation. This involved assessing whether the agreement was made in good faith, if it provided for minimum rates of pay and conditions, and if it included provisions for dispute resolution.

The legal issues before the Commission included whether the union had genuinely negotiated the agreement with the employer, whether the agreement adequately covered minimum pay and conditions, and if the agreement was fair and reasonable in all its terms. The Commission also had to consider whether the agreement complied with specific statutory requirements, including the provision of notice to employees and the inclusion of a dispute resolution clause. The union argued that the agreement was the product of genuine negotiations and met all statutory requirements, while the employer raised concerns about certain provisions.

In its decision, the Commission found that the agreement was made in good faith and that the union had genuinely negotiated with the employer. The Commission also determined that the agreement adequately provided for minimum rates of pay and conditions and included appropriate dispute resolution mechanisms. The Commission was satisfied that the agreement met all the statutory requirements, including the provision of notice to employees. Consequently, the Commission approved the agreement, finding that it was fair and reasonable and complied with the relevant provisions of the Fair Work Act.

The Commission's final orders approved the Early Childhood Education Collective Enterprise Agreement 2024, effective from the date of the decision. The agreement was to be registered with the Fair Work Ombudsman, and the parties were directed to take all necessary steps to give effect to the agreement. The decision provided clarity on the requirements for approving such agreements and reinforced the importance of genuine negotiation and compliance with statutory provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established