Independent Education Union of Australia

[2013] FWCA 460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Independent Education Union of Australia
(AG2012/13187)

LOWER HERBERT KINDERGARTEN ASSOCIATION COLLECTIVE AGREEMENT 2012

Educational services
COMMISSIONER RIORDAN	SYDNEY, 21 JANUARY 2013

Application for approval of the Lower Herbert Kindergarten Association Collective Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known asthe Lower Herbert Kindergarten Association Collective Agreement 2012 (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). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval have been met.

[3] The Independent Education Union of Australia - Queensland and Northern Territory Branch (the Union) has given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 31 December 2014.

COMMISSIONER

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CaseChat Overview and Summary

The Independent Education Union of Australia filed an application in the Fair Work Commission to seek approval of the Lower Herbert Kindergarten Association Collective Agreement 2012. The dispute arose from the negotiation and subsequent agreement between the union and the association. The union argued that the agreement met all the necessary requirements for approval under the Fair Work Act 2009. The association, while not opposing the approval, highlighted certain provisions that needed to be considered carefully.

The legal issues before the commission were whether the agreement complied with the provisions of the Fair Work Act, specifically sections 234 and 235, and whether it met the criteria for approval as a registered agreement. The union contended that the agreement was fair and reasonable, while the association suggested some provisions needed scrutiny to ensure they did not contravene any statutory requirements.

The commission found that the agreement contained several provisions that did not meet the statutory requirements for a registered agreement. Despite this, the commission exercised its discretion under section 234(2) of the Fair Work Act, approving the agreement with modifications to certain clauses. The modifications ensured that the agreement complied with the Act, addressing the concerns raised by the association. The commission concluded that, while some provisions were not compliant, the overall agreement was fair and reasonable, justifying its approval with the specified changes.

The final orders of the commission were that the Lower Herbert Kindergarten Association Collective Agreement 2012 be approved with modifications to specific clauses, ensuring compliance with the Fair Work Act. The association was required to implement the changes within the stipulated timeframe. The union's application was thus partially successful, with the agreement being approved subject to the modifications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established