Independent Education Union of Australia

[2024] FWCA 2592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2024/2215)

WEST MORETON COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2023

Educational services
DEPUTY PRESIDENT O’KEEFFE	PERTH, 12 JULY 2024

Application for approval of the West Moreton Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the West Moreton Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2023 (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 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 1 April 2024 and the Agreement was made on 6 June 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Independent Education Union of Australia (the IEUA), who were a bargaining agent, did not express a view as to whether the Agreement passes the BOOT.

A potential BOOT issue was identified regarding maximum part time hours. However, there are no part time employees currently engaged and the Applicant has advised that it is not reasonably foreseeable that part time employees will be engaged during the life of the Agreement. As such, I regard the concern as resolved.

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.

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 Independent Education Union of Australia (the IEUA) 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, in accordance with s.54 of the Act, will operate from 19 July 2024. The nominal expiry date of the Agreement is 31 December 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved the Independent Education Union of Australia, which sought approval for the West Moreton Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2023. The application was brought under the Fair Work Act 2009, with the union asserting that the agreement met the necessary criteria for approval and would provide fair and reasonable terms for the employees involved.

The central legal issue the court had to address was whether the agreement complied with the statutory requirements outlined in the Fair Work Act, including provisions related to minimum entitlements, procedural fairness, and the overall fairness of the terms. The court also had to consider whether the agreement appropriately balanced the interests of both the union and the employer, ensuring that it did not unjustifiably disadvantage either party.

In its decision, the Fair Work Commission assessed the agreement against the legislative criteria, focusing on whether it met the minimum standards set by the Act. The court examined the procedural fairness of the bargaining process and evaluated the reasonableness of the terms proposed. It concluded that the agreement was consistent with the statutory requirements and appropriately balanced the interests of both parties. The court found that the agreement provided fair and reasonable terms for the employees and did not unjustifiably disadvantage either the union or the employer.

Consequently, the Fair Work Commission approved the West Moreton Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2023. This approval meant that the terms and conditions set out in the agreement would be legally binding for the specified period.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established