Independent Education Union of Australia

[2024] FWCA 3399

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Independent Education Union of Australia

(AG2024/3067)

KOOLYANGARRA KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER DURHAM	BRISBANE, 26 SEPTEMBER 2024

Application for approval of the Koolyangarra Kindergarten Early Childhood Education Collective Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Koolyangarra 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:

Kindergarten Events Allowance – clause 2.4.6.

Subject 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, Clerks – Private Sector Award 2020 and Children's Services Award 2010 respectively, are taken to be a term of the Agreement.

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

Deduction/withholding of monies due to the employee under the NES on termination – clause 3.4.2.

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 31 December 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the Koolyangarra Kindergarten Early Childhood Education Collective Enterprise Agreement 2024, submitted by the Independent Education Union of Australia. The dispute arose from the negotiation process and the contents of the proposed agreement, which aimed to regulate the terms and conditions of employment for early childhood educators within the specified educational institution.

The primary legal issues before the Commission centred on whether the agreement complied with the relevant provisions of the Fair Work Act 2009, particularly those relating to the negotiation process, the content of the agreement, and its compliance with the "better off overall test". This test requires that the agreement provides employees with no less favourable terms and conditions than those provided by the applicable award or safety net award. The Commission also had to consider whether the agreement met the procedural requirements, including whether the agreement was genuinely negotiated and whether it adhered to the good faith bargaining principles.

In reaching its decision, the Commission thoroughly examined the negotiation process and the contents of the agreement. It found that the negotiation process was conducted in good faith, with both parties engaging in meaningful discussions. The Commission also determined that the terms and conditions of the agreement were no less favourable than those provided by the applicable award and met the better off overall test. Additionally, the agreement was found to be compliant with the procedural requirements under the Fair Work Act. Based on these findings, the Commission approved the Koolyangarra Kindergarten Early Childhood Education Collective Enterprise Agreement 2024.

The final orders of the Commission included the approval of the agreement, effective from the date of the decision. This approval allows the agreement to be registered with the Fair Work Ombudsman and to operate as a lawful agreement between the employer and the employees represented by the Independent Education Union of Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established