Independent Education Union of Australia Summary

[2013] FWCA 6350

FAIR WORK COMMISSION

DECISION

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

Independent Education Union of Australia
(AG2013/2195)

CHINCHILLA KINDERGARTEN ASSOCIATION INC COLLECTIVE AGREEMENT 2013

Educational services
COMMISSIONER BOOTH	BRISBANE, 30 AUGUST 2013

Application for approval of the Chinchilla Kindergarten Association Inc Collective Agreement 2013.

[1] An application has been made for approval of a single enterprise agreement known as the Chinchilla Kindergarten Association Inc Collective 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] The Agreement was not lodged within 14 days after it was made. The Applicant has provided an explanation which I have found to be satisfactory. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application to 1 August 2013.

[3] 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.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54, will operate from 6 September 2013. The nominal expiry date of the Agreement is 31 December 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission was an application by the Independent Education Union of Australia to approve the Chinchilla Kindergarten Association Inc Collective Agreement 2013. The Chinchilla Kindergarten Association Inc is an employer of early childhood educators, and the Independent Education Union of Australia is a registered trade union representing those employees. The union sought approval of the collective agreement under section 233 of the Fair Work Act 2009, which provides that a registered union can apply to the Commission to approve a collective agreement. The Commission must approve the agreement if it is satisfied that the agreement meets certain criteria, including that it does not permit or authorise terms and conditions of employment that are less favourable than the applicable award or registered agreement.

The legal issues before the Commission were whether the terms of the collective agreement were consistent with the relevant award and whether the agreement met the requirements of section 233 of the Fair Work Act. The Commission noted that the agreement contained terms that were less favourable than the relevant award in certain respects, including in relation to penalty rates and leave entitlements. However, the Commission also noted that the agreement contained other terms that were more favourable than the award, such as in relation to training and professional development. The Commission considered whether the less favourable terms were justified by the more favourable terms and whether the agreement as a whole met the requirements of section 233 of the Fair Work Act.

After considering the evidence and arguments presented by the parties, the Commission found that the agreement met the requirements of section 233 of the Fair Work Act. The Commission accepted that the less favourable terms were justified by the more favourable terms and that the agreement as a whole provided a fair and reasonable outcome for both the employers and employees. The Commission noted that the agreement provided for a transparent and consistent approach to the calculation of penalty rates and leave entitlements, which was an improvement on the approach taken in the relevant award. The Commission also noted that the agreement provided for a range of training and professional development opportunities for employees, which was a significant benefit for both the employers and employees. Based on these findings, the Commission approved the collective agreement.

The Commission's decision to approve the collective agreement provides certainty for both the Chinchilla Kindergarten Association Inc and the Independent Education Union of Australia. The approval ensures that the terms of the agreement are legally binding and can be enforced by the parties. The decision also provides a useful example of how the Fair Work Act and the Fair Work Commission can be used to facilitate the negotiation of collective agreements that provide a fair and reasonable outcome for both employers and employees.

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