Independent Education Union of Australia

[2024] FWCA 1216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2024/850)

NAMBOUR COMMUNITY PRESCHOOL & KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2024

Educational services
DEPUTY PRESIDENT DOBSON	BRISBANE, 4 APRIL 2024

Application for approval of the Nambour Community Preschool & Kindergarten Early Childhood Education Collective Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Nambour Community Preschool & 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. 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]

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.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, 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 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

The Independent Education Union of Australia sought approval for the Nambour Community Preschool & Kindergarten Early Childhood Education Collective Enterprise Agreement 2024. The application was heard by the Fair Work Commission (FWC) to ensure the agreement met the necessary standards under the Fair Work Act 2009. The union argued that the agreement, which outlined terms and conditions for preschool and kindergarten employees, was fair and balanced, considering the educational context and the needs of the workforce.

The primary legal issues before the FFW were whether the agreement complied with the provisions of the Fair Work Act and the FWC's guidelines on approved agreements. This included assessing whether the agreement was free from provisions that might lead to underpayment or unfair treatment of employees, and whether it appropriately balanced the interests of both employers and employees. The FWC also needed to confirm that the agreement had been negotiated in good faith and provided for appropriate mechanisms for resolving disputes.

The FWC examined the agreement clause by clause, considering the context of early childhood education and the specific needs of the workforce. It found that the agreement adequately protected the rights and interests of employees while also allowing for reasonable flexibility for employers. The FWC noted the union's and the employer's commitment to negotiating in good faith and the provisions within the agreement that supported fair and reasonable workplace practices. Based on this assessment, the FWC concluded that the agreement was fair and approved it under the Fair Work Act.

The FWC's approval of the agreement was formalised in a written decision, which detailed the reasons for its approval and outlined any specific conditions or requirements that the agreement must adhere to in the future. This decision ensures that the terms and conditions set out in the agreement are legally binding and enforceable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established