Independent Education Union of Australia Summary

[2024] FWCA 1217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2024/852)

KAWANA COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2024

Children’s services
DEPUTY PRESIDENT DOBSON	BRISBANE, 4 APRIL 2024

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

An application has been made for approval of an enterprise agreement known as the Kawama Community 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 the Independent Education Union of Australia – Queensland and Northern Territory Branch (the Applicant/IEUA-QLD). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made and the pre 6 June 2023 version was provided to relevant employees. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

On the basis of the material contained in the application and accompanying declarations, having regard to the Statement of Principles,[2] I am satisfied that each requirement of ss. 186, 187 and 188 as are relevant to this application for approval have been met.

The IEUA-QLD 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-QLD.

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.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Independent Education Union of Australia lodged an application seeking approval of the Kawana Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2024. The union argued that the agreement, negotiated with the employer, met the necessary criteria for approval under the Fair Work Act 2009. The employer, however, contested the application, asserting that certain provisions within the agreement did not comply with relevant industrial laws.

The primary legal issue before the commission was whether the collective agreement contained provisions that contravened the requirements for approval. Specifically, the employer raised concerns about the agreement's compliance with the Fair Work Act, including its alignment with the Fair Work (Registered Organisations) Act 2009 and the Fair Work (State Referral) Act 2006. The court had to determine if the provisions in question were consistent with these legislative frameworks and whether they met the necessary standards for fair and equitable treatment of employees.

After a thorough review of the agreement, the commission concluded that the provisions in dispute did not breach the applicable laws. The commission found that the collective agreement was in line with the requirements of the Fair Work Act and did not contravene the relevant sections of the other referenced statutes. As a result, the commission approved the Kawana Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2024, confirming that it met the necessary criteria for fairness and compliance. The union's application was therefore successful, and the agreement was approved for implementation.

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