Independent Education Union of Australia Summary

[2024] FWCA 10

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2023/5153)

MACARTHUR PRESCHOOL EMPLOYEE COLLECTIVE AGREEMENT 2023

Educational services
COMMISSIONER THORNTON	ADELAIDE, 7 MARCH 2024

Application for approval of the Macarthur Preschool Employee Collective Agreement 2023

An application has been made for approval of an enterprise agreement known as the Macarthur Preschool Employee Collective Agreement 2023 (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 (the Applicant or IEUA). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different title for the Agreement, that title being ‘Macarthur Preschool Employee Collective Agreement 2021’. The Applicant has confirmed it is a minor technical error. I am satisfied that the Agreement would have been genuinely agreed to but for the slight departure from the NERR requirements in s.174(1)(A)(c) and that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188 of the Act and exercise the discretion conferred by s.188(5) of the Act to disregard the minor technical error.

The Applicant has provided a written undertaking. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.

Subject to the undertaking referred to above, I am satisfied that each requirement of ss186, 187 and 188 and section 190 as are relevant to this application for approval have been met.

Noting clause 6 of the Agreement, I am satisfied that if there is any inconsistency between the Agreement and the National Employment Standards (NES) in the Act, the NES will prevail. The Applicant has given an undertaking that no shift work will be undertaken at the enterprise.

The copy of the Agreement filed with the application for approval contained a number of referencing errors. The Applicant contacted the Commission and requested that I allow the Agreement to be amended to resolve these errors. An amended copy of the Agreement was subsequently provided. I consider it appropriate in the circumstances to allow the amendments pursuant to s.586(a) of the Act.

The IEUA 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.

The Agreement is approved and will operate in accordance with s.54 of the Act from 14 March 2024. The nominal expiry date of the Agreement is 31 December 2026.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

The case before the Fair Work Commission was an application by the Independent Education Union of Australia for approval of the Macarthur Preschool Employee Collective Agreement 2023. The application was made under section 185 of the Fair Work Act 2009, and the Agreement in question is a single enterprise agreement covering employees of a preschool in educational services. The application was made by the Independent Education Union of Australia, who was acting on behalf of the employees.

The legal issues the court was required to decide were whether the Agreement had been genuinely agreed upon by the employees, and if it met the requirements of the Fair Work Act. Specifically, the court needed to determine if the Agreement was in compliance with sections 186, 187, 188, and 190 of the Act, and if it aligned with the National Employment Standards. Additionally, the court had to consider whether a minor technical error in the title of the Agreement on the Notice of Employee Representational Rights was significant enough to affect the approval process.

The court found that the Agreement had indeed been genuinely agreed to by the employees, despite a minor technical error in the title. The court was satisfied that the error did not disadvantage the employees and would not have impacted their willingness to agree to the terms. The court also found that the Agreement met all relevant requirements of the Act and that the National Employment Standards would prevail in case of any inconsistency. The court granted permission to amend the Agreement to correct referencing errors, and noted that the Agreement would not result in financial detriment to any employee. The court approved the Agreement, which will operate from 14 March 2024 until 31 December 2026.

The final orders of the court were that the Macarthur Preschool Employee Collective Agreement 2023 be approved and would operate in accordance with the Fair Work Act from 14 March 2024 until 31 December 2026. The court also noted that the Independent Education Union of Australia would be covered by the Agreement, in accordance with section 201(2) of the Act.

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