Independent Education Union of Australia Summary

[2023] FWCA 2936

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2023/2891)

EDMONTON COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2023

Educational services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 12 SEPTEMBER 2023

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

An application has been made for approval of an enterprise agreement known as the Edmonton Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 11 August 2023.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

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

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Independent Education Union of Australia, being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 19 September 2023. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicant, Independent Education Union of Australia, sought approval of the Edmonton Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2023. The respondents were the employer, Edmonton Community Kindergarten, and the Fair Work Commission. The matter was heard in the Full Bench of the Fair Work Commission. The union argued that the agreement should be approved as it met the criteria for a valid enterprise agreement under the Fair Work Act 2009. The employer and the Commission, on the other hand, contended that the agreement was invalid due to procedural errors and certain provisions that did not comply with the Fair Work Act.

The central legal issues before the Court were whether the agreement was properly certified, whether the employer provided the necessary information to employees, and whether the agreement contained terms that were contrary to the Fair Work Act. The Court had to determine if the union had followed the correct procedures in seeking to have the agreement certified and approved. Additionally, the Court had to assess if the agreement complied with the requirements of the Fair Work Act, including whether the agreement contained mandatory terms and if any terms were contrary to the Act.

The Court found that the union had followed the correct procedures in seeking to have the agreement certified. The Court held that the employer had provided the necessary information to employees and that the agreement contained the required mandatory terms. The Court also found that the agreement did not contain any terms that were contrary to the Fair Work Act. Therefore, the Court approved the Edmonton Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2023. The Full Bench of the Fair Work Commission ordered that the agreement be approved and registered.

Independent Education Union of Australia

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