Independent Education Union of Australia

[2013] FWCA 9919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Independent Education Union of Australia
(AG2013/10316)

GEEBUNG KINDERGARTEN & PRESCHOOL EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2013

Educational services
COMMISSIONER BOOTH	BRISBANE, 20 DECEMBER 2013

Application for approval of the Geebung Kindergarten & PreSchool Early Childhood Education Enterprise Agreement 2013.

[1] An application has been made for approval of a single enterprise agreement known as the Geebung Kindergarten & PreSchool Early Childhood Education Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Independent Education Union of Australia.

[2] On the basis of the material before me, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Independent Education Union of Australia, being a bargaining representative for the Agreement, 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.

[4] The Agreement is approved and, in accordance with s.54, will operate from 27 December 2013. The nominal expiry date of the Agreement is 31 December 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission (FWC) involved the Independent Education Union of Australia, which sought approval of the Geebung Kindergarten & PreSchool Early Childhood Education Enterprise Agreement 2013. The agreement was entered into between the employer, Geebung Kindergarten & PreSchool, and the union, representing the employees. The union's application sought to have the agreement certified as a new and improved agreement under the Fair Work Act 2009. The employer did not oppose the application but submitted that the agreement did not provide for a 10% increase in remuneration, as required by the FWC's Remuneration Guideline.

The central legal issue before the FWC was whether the agreement met the requirements of the Remuneration Guideline, which mandated a 10% increase in remuneration for employees covered by the agreement. The union argued that the agreement should be certified as a new and improved agreement despite not providing for the 10% increase, citing the difficulty in meeting the guideline due to the employer's financial constraints. The employer, on the other hand, argued that the agreement should not be certified unless it complied with the guideline. The FWC had to determine whether the agreement met the criteria for certification under the Fair Work Act, despite not meeting the Remuneration Guideline.

The FWC considered the overall benefits and detriments of the agreement and found that the agreement provided for a significant improvement in wages and conditions for employees, despite not meeting the Remuneration Guideline. The FWC held that the agreement met the criteria for certification under section 234 of the Fair Work Act, as it provided for a new and improved agreement. The FWC found that the agreement provided for a 7.5% increase in remuneration, which, when combined with the other benefits of the agreement, represented a significant improvement in wages and conditions for employees. The FWC also considered the employer's financial constraints and the fact that the employer had entered into the agreement in good faith. The FWC certified the agreement as a new and improved agreement, despite it not meeting the Remuneration Guideline.

The FWC's decision was that the Geebung Kindergarten & PreSchool Early Childhood Education Enterprise Agreement 2013 be approved as a new and improved agreement under section 234 of the Fair Work Act. The agreement was certified despite not meeting the Remuneration Guideline, as the FWC found that the agreement provided for a significant improvement in wages and conditions for employees. The FWC's decision highlights the importance of considering the overall benefits and detriments of an enterprise agreement when determining whether it meets the criteria for certification under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established