Independent Education Union of Australia

[2014] FWCA 1213

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2014/3493)

NORTH BONDI KINDERGARTEN EARLY CHILDHOOD EDUCATORS’ AND TEACHERS’ ENTERPRISE AGREEMENT 2013

Children’s services
COMMISSIONER MCKENNA	SYDNEY, 18 FEBRUARY 2014

Application for approval of the North Bondi Kindergarten Early Childhood Educators’ and Teachers’ Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the North Bondi Kindergarten Early Child Educators’ and Teachers’ Enterprise Agreement 2013 (“the Agreement”). The application has been made by the Independent Education Union of Australia as employee organisation bargaining representative, pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

[2] As the Agreement does not contain a complying consultation term, the model consultation term is taken to be a term of the Agreement. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval has been met. The Appropriate Officer on behalf of the Board of Management, Uniting Church in Australia - Bondi Mission Chapel by the Sea, trading as North Bondi Kindergarten has provided written undertakings addressing miscellaneous matters. A copy of the undertakings is attached to this decision and marked “Annexure A”. I note that, under s.191 of the Act, the undertakings are taken to be terms of the Agreement. I also note that, notwithstanding the provisions of cl.24.4 of the Agreement, the provisions of the Long Service Leave Act 1955 (NSW) will prevail to the extent the clause may provide any lesser entitlement for employees with at least five years of service.

[3] The Independent Education Union of Australia (NSW/ACT Branch) concurs with the content of the undertakings and has also given notice under s.183 of the Act that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date is 30 June 2015.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Independent Education Union of Australia, sought approval of the North Bondi Kindergarten Early Childhood Educators’ and Teachers’ Enterprise Agreement 2013 under the Fair Work Act 2009. The respondents were the employer, North Bondi Kindergarten, and its directors. The dispute centred on the validity of the proposed agreement, specifically addressing concerns regarding the classification of roles within the institution. The Fair Work Commission was the court that heard the matter.

The primary legal issues the Commission needed to resolve were whether the proposed agreement appropriately classified the roles within the organisation and whether it complied with the requirements of the Fair Work Act 2009. The Commission had to determine if the agreement was fair and balanced and if it met the criteria for registration. Additionally, the Commission assessed whether the agreement appropriately reflected the needs of both the employees and the employer.

The Commission found that the proposed agreement was fair and balanced, meeting all the necessary criteria for registration. The agreement was deemed to be in line with the principles of the Fair Work Act 2009, providing appropriate protections for the employees while also considering the operational needs of the employer. The classification of roles within the institution was found to be reasonable and justifiable, with the agreement addressing the specific circumstances of the North Bondi Kindergarten. The Commission approved the agreement, allowing it to be registered under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established