Independent Education Union of Australia

[2013] FWCA 565

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
(AG2013/99)

JANDOWAE KINDERGARTEN EARLY CHILDHOOOD EDUCATION ENTERPRISE AGREEMENT 2011

Children's services
COMMISSIONER BOOTH	BRISBANE, 25 JANUARY 2013

Variation of the Jandowae Kindergarten Early Childhoood Education Enterprise Agreement 2011.

[1] An application has been made for approval of a variation to an enterprise agreement known as the Jandowae Kindergarten Early Childhoood 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 (the Union) brought an application before the Fair Work Commission (the Commission) seeking to have the Jandowae Kindergarten Early Childhood Education Enterprise Agreement 2011 (the Agreement) varied. The Union contended that the Agreement should be amended to include provisions addressing the rights and obligations of employees who are required to undertake work outside of their usual hours of employment. The respondent, Jandowae Kindergarten Early Childhood Education (the Employer), opposed the application, arguing that such provisions were beyond the scope of the Agreement and not necessary for the operation of the kindergarten.

The primary legal issue before the Commission was whether the proposed variations to the Agreement fell within the scope of the agreement or whether they constituted new terms that required further negotiation between the parties. The Union argued that the variations were necessary to address a significant issue affecting the employees' work conditions, while the Employer contended that the proposed changes were outside the scope of the existing agreement and required a new negotiation process.

The Commission found that the proposed variations did not fall within the scope of the existing Agreement and that they constituted new terms that required further negotiation between the parties. The Commission noted that the Agreement did not explicitly address the issue of work outside of usual hours, and therefore, the proposed variations were not variations of the existing terms but rather new terms that needed to be negotiated. The Commission also considered the principle of good faith bargaining, which requires parties to negotiate in a manner that is fair and reasonable. The Commission concluded that the Employer had not demonstrated a genuine attempt to negotiate the proposed variations in good faith.

The Commission dismissed the Union's application for variation of the Agreement. The Commission did not make any orders as the application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established