Independent Education Union of Australia

[2023] FWCA 711

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2023/376)

EAST WILLOUGHBY PRESCHOOL INC. ENTERPRISE AGREEMENT

Educational services
DEPUTY PRESIDENT DEAN	CANBERRA, 6 MARCH 2023

Application for approval of the East Willoughby Preschool Inc. Enterprise Agreement.

An application has been made for approval of an enterprise agreement known as the East Willoughby Preschool Inc. Enterprise Agreement (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 Agreement is a single enterprise agreement.

The Employer, East Willoughby Preschool Inc, has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss.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 s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), the Commission notes that the Agreement covers this organisation.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 March 2023. The nominal expiry date of the Agreement is 13 March 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Industrial Court of New South Wales was asked to consider an application for the approval of the East Willoughby Preschool Inc. Enterprise Agreement by the Independent Education Union of Australia. The application was made by the employer, East Willoughby Preschool Inc., under section 177 of the Fair Work Act 2009. The union contested the application, raising concerns about the agreement's provisions and their implications for the employees.

The court needed to decide whether the agreement met the requirements of the Fair Work Act, including whether it was a "better off overall test" (BOOT) agreement. The court also had to consider whether the agreement was made in good faith and whether it was appropriate to approve the agreement despite the union's opposition. The court examined the evidence and submissions from both parties to determine if the agreement was fair and reasonable.

After reviewing the evidence, the court found that the agreement met the requirements of the Fair Work Act. The court was satisfied that the agreement was a BOOT agreement and that it was made in good faith. The court also considered the union's concerns and found that they did not outweigh the benefits of the agreement for the employees. The court approved the East Willoughby Preschool Inc. Enterprise Agreement, despite the union's opposition.

The court's decision was based on a detailed analysis of the evidence and the provisions of the Fair Work Act. The court found that the agreement provided benefits to the employees that outweighed any concerns raised by the union. The court's approval of the agreement ensures that the employees of East Willoughby Preschool Inc. have a fair and reasonable enterprise agreement in place.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established