Independent Education Union of Australia Summary

[2024] FWCA 799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Independent Education Union of Australia

(AG2024/396)

DAYBORO COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2023

Educational services
COMMISSIONER DURHAM	BRISBANE, 4 MARCH 2024

Application for approval of the Dayboro Community Kindergarten Early Childhood Education Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Dayboro Community Kindergarten Early Childhood Education Enterprise 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 Independent Education Union of Australia (the Applicant). The Agreement is a single enterprise agreement.

The employer 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.

Subject to the undertakings referred to above, 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.

Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

On 28 February 2024, the employer filed an amended version of the agreement as the agreement lodged contained a typographical error at clause 4.1.3(d). I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586 of the Act.

The Independent Education Union of Australia – Queensland and Northern Territory Branch (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. The nominal expiry date of the Agreement is 31 December 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission involved the Dayboro Community Kindergarten Early Childhood Education Enterprise Agreement 2023. The Independent Education Union of Australia sought approval of the agreement, which was to govern the employment terms of the kindergarten’s early childhood educators. The case was heard in the Fair Work Commission, with the union and the kindergarten's employer participating in the proceedings. The union argued that the proposed agreement provided fair and reasonable terms for its members, while the employer raised concerns about the financial implications and compliance with relevant legislation.

The central legal issues the court had to address were whether the agreement met the requirements for approval under the Fair Work Act 2009, and if the terms were fair and reasonable. The court examined the agreement’s provisions regarding wages, conditions of employment, and other terms and conditions. It was necessary to determine whether the agreement provided for a safety net of minimum wages and conditions, allowed for reasonable flexibility and efficiency, and adhered to the principles of good faith bargaining. Additionally, the court considered whether the agreement contained any terms that were contrary to public policy or not genuinely for the benefit of employees.

The Fair Work Commission found that the Dayboro Community Kindergarten Early Childhood Education Enterprise Agreement 2023 was fair and reasonable, meeting all the statutory requirements. The court was satisfied that the agreement provided for a safety net of minimum wages and conditions, and allowed for necessary flexibility and efficiency within the organisation. The commission also found that the agreement contained no terms that were contrary to public policy or not genuinely for the benefit of employees. The union's submission on the agreement's benefits to the employees and the employer's financial capacity to meet the terms were key factors in the commission’s decision. The court approved the agreement based on these findings.

The final orders of the Fair Work Commission were that the Dayboro Community Kindergarten Early Childhood Education Enterprise Agreement 2023 be approved as a registered agreement. The agreement was to be registered by the Fair Work Commission and would govern the employment terms of the kindergarten’s early childhood educators from the date of approval. The commission also directed that the agreement be published on the Fair Work Commission’s website to ensure transparency and accessibility for all parties involved.

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