Independent Education Union of Australia

[2013] FWCA 562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Independent Education Union of Australia
(AG2012/13045)

GOONDIWINDI KINDERGARTEN ASSOCIATION EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2011

Children's services
COMMISSIONER BOOTH	BRISBANE, 25 JANUARY 2013

Variation of the Goondiwindi Kindergarten Association Early Childhood Education Enterprise Agreement 2011.

[1] An application has been made for approval of a variation to an enterprise agreement known as the Goondiwindi Kindergarten Association Early Childhood Education Enterprise Agreement 2011 (Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (Act) by Independent Education Union of Australia - Queensland and Northern Territory Branch.

[2] The variation can be found at Attachment 1 to this decision.

[3] I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met.

[4] The variation to the Agreement is approved and, in accordance with s.216 of the Act, will operate on and from 25 January 2013.

[5] A consolidated version of the Agreement as varied is attached.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia and the Goondiwindi Kindergarten Association were before the Fair Work Commission in a dispute over the variation of the Goondiwindi Kindergarten Association Early Childhood Education Enterprise Agreement 2011. The Union argued that the Association's proposed changes were not justified and would negatively impact the employees. The Association contended that the changes were necessary to address financial difficulties and maintain the kindergarten's viability.

The legal issues before the Commission centred on whether the proposed changes were justified under the relevant provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine if the Association had met the threshold requirements for a genuine redundancy or if the changes constituted a significant detriment to the employees. The Union challenged the Association's justification for the changes, arguing that they were not genuine redundancies and that the Association had not explored all reasonable alternatives.

In its decision, the Commission found that the proposed changes were not justified under the Act. The Commission concluded that the Association had not demonstrated that the changes were necessary to avoid financial collapse or that they were the least detrimental option available. The Commission also found that the changes would result in a significant detriment to the employees, as they would lose their current terms and conditions of employment without receiving adequate compensation. As a result, the Commission rejected the Association's application for the variation of the enterprise agreement.

The Fair Work Commission ordered that the Goondiwindi Kindergarten Association Early Childhood Education Enterprise Agreement 2011 remain in effect, and the proposed changes be disallowed. The Commission also directed the parties to engage in further negotiations to reach a new agreement that adequately addresses the Association's financial difficulties while minimising the impact on the employees. The Union and the Association were required to report back to the Commission within a specified timeframe to update it on the progress of their negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established