Independent Education Union of Australia

[2023] FWCA 325

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2022/5487)

BILOELA COMMUNITY PRESCHOOL & KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2022

Educational services
COMMISSIONER HUNT	BRISBANE, 1 FEBRUARY 2023

Application for approval of the Biloela Community Preschool & Kindergarten Early Childhood Education Collective Enterprise Agreement 2022

The Independent Education Union of Australia – Queensland and Northern Territory Branch (IEU) has applied for approval of an enterprise agreement known as the Biloela Community Preschool & 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). The Employer is Biloela Community Preschool & Kindergarten Association Inc. (the Employer). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the IEU regarding the undertakings. The IEU supports the 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings 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 IEU 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) of the Act I note that the Agreement covers the IEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 February 2023. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

The Independent Education Union of Australia sought approval of the Biloela Community Preschool & Kindergarten Early Childhood Education Collective Enterprise Agreement 2022. The applicant argued that the agreement provided a fair and reasonable framework for the employment of early childhood educators within the preschool and kindergarten sector. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. This involved assessing whether the agreement contained the necessary minimum terms and conditions, and whether it had been negotiated in good faith and without the coercion of employers. The Commission also had to consider whether the agreement provided a fair and reasonable basis for the employment of early childhood educators.

In reaching its decision, the Commission examined the provisions of the agreement and the evidence provided by both parties. The Commission found that the agreement contained all the necessary minimum terms and conditions, and that it had been negotiated in good faith. The Commission also determined that the agreement provided a fair and reasonable basis for the employment of early childhood educators. Accordingly, the Commission approved the agreement.

The Fair Work Commission approved the Biloela Community Preschool & Kindergarten Early Childhood Education Collective Enterprise Agreement 2022, finding it to be fair and reasonable, and in compliance with the statutory requirements. The Commission's decision provides a clear framework for the employment of early childhood educators within the preschool and kindergarten sector, and ensures that their rights and entitlements are protected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established