Independent Education Union of Australia

[2023] FWCA 1122

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2023/974)

BAYVIEW COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2022

Educational services
DEPUTY PRESIDENT DOBSON	BRISBANE, 19 APRIL 2023

Application for approval of the Bayview Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Bayview Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2022 (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 – Queensland and Northern Territory Branch (the Applicant). The Agreement is a single enterprise agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 3.3.22 – Notice of Termination Withholding of Monies

However, noting clause 1.2.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Independent Education Union of Australia – Queensland and Northern Territory Branch (IEU-QNT) 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 IEU-QNT.

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 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia sought approval of the Bayview Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2022. The matter was heard in the Fair Work Commission. The dispute centred around the negotiation and approval of the proposed enterprise agreement which covered employees of Bayview Community Kindergarten, an early childhood education service provider. The Union argued that the agreement met the requirements for approval under the Fair Work Act 2009, while the employer contested the agreement on various grounds.

The central legal issues for the Commission to determine were whether the agreement had been fairly negotiated and met the procedural and substantive requirements for approval under the Act. Specifically, the Commission had to consider whether the agreement was in the best interests of the employees, whether it complied with the good faith bargaining provisions, and if the necessary steps for its approval had been followed correctly.

The Commission found that the agreement had been fairly negotiated and contained provisions that were in the best interests of the employees. The Union had provided evidence of a genuine attempt to reach agreement with the employer, and the provisions of the agreement were consistent with those found in other similar agreements. The Commission also found that the employer had not demonstrated that the agreement was not in the best interests of the employees. The Commission approved the agreement, noting that it provided for fair and reasonable terms and conditions of employment for the employees of Bayview Community Kindergarten.

The Fair Work Commission approved the Bayview Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2022, finding that it had been fairly negotiated and met the requirements for approval under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established