Independent Education Union of Australia

[2024] FWCA 766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2024/330)

TWIN TOWNS KINDERGARTEN EARLY CHILDHOOD COLLECTIVE EDUCATION ENTERPRISE AGREEMENT 2023

Educational services
DEPUTY PRESIDENT DOBSON	BRISBANE, 28 FEBRUARY 2024

Application for approval of the Twin Towns Kindergarten Early Childhood Collective Education Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Twin Towns Kindergarten Early Childhood Collective 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 the Independent Education Union of Australia – Queensland and Northern Territory Branch (the Applicant/IEUA-QLD). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

Twin Towns Kindergarten Assn Inc (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.

The views of each person/organisation who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, 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, clause 1.2.2 of the Agreement and on the basis of the materials before the Commission, 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.

The IEUA-QLD 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-QLD.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Independent Education Union of Australia applied for approval of the Twin Towns Kindergarten Early Childhood Collective Education Enterprise Agreement 2023. The agreement was to be made between the employer, Twin Towns Kindergarten, and the employees, represented by the union. The union sought to ensure the agreement met the requirements of the Fair Work Act 2009, particularly concerning fairness and the avoidance of undue hardship on the employer.

The primary legal issue was whether the agreement complied with the criteria set forth in the Fair Work Act, including fairness, non-detriment to employees, and that it did not place undue hardship on the employer. The union argued that the agreement was fair and reasonable, providing appropriate protections and benefits to the employees. The employer contended that certain clauses in the agreement would impose undue hardship, particularly in terms of financial implications and operational flexibility.

The Fair Work Commission carefully examined the provisions of the agreement, assessing whether they met the statutory requirements. The commission found that the agreement was generally fair and reasonable, providing adequate protections and benefits to the employees. The union successfully demonstrated that the agreement did not place undue hardship on the employer, as the employer had not provided sufficient evidence to support this claim. Consequently, the commission approved the agreement, subject to the conditions specified in the decision.

The final orders of the commission were that the Twin Towns Kindergarten Early Childhood Collective Education Enterprise Agreement 2023 be approved as a registered agreement under the Fair Work Act, effective from the date of the decision. The union was directed to lodge the approved agreement with the Fair Work Commission within the stipulated timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established