Independent Education Union of Australia Summary

[2023] FWCA 105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2022/5364)

NORMAN PARK COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2022

Educational services
COMMISSIONER HUNT	BRISBANE, 12 JANUARY 2023

Application for approval of the Norman Park Community Kindergarten Early Childhood Education Enterprise Agreement 2022

The Independent Education Union of Australia has applied for approval of an enterprise agreement known as the Norman Park Community Kindergarten Early Childhood Education Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Employer is Norman Park Community Kindergarten Inc (the Employer). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) identified that the proposed agreement name in the Notice of Employee Representational Rights (NERR) issued in the course of making the Agreement with employees included the year 2020, whereas the Agreement includes the year 2022. The NERR was originally issued on 21 August 2020.

I am satisfied that it is appropriate to exercise the discretion in s.188(2) of the Act to find that the Agreement was genuinely agreed to by the employees covered by the Agreement, as required by s.188(1) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Further, the commencement of the voting was pushed back some hours on the day the voting commenced, while the cessation of the nominated voting period was extended. Of the seven employees eligible to vote, six employees voted, with six employees voting yes to make the Agreement. Employees were given only six clear days’ notice of the change in hours to the voting period, while the Act provides for seven days’ notice.

The employees had a period of four days in which to submit their vote. I am satisfied that it is appropriate to exercise the discretion in s.188(2) of the Act to find that the Agreement was genuinely agreed to by the employees covered by the Agreement, as required by s.188(1) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

I have taken into consideration the material filed in the Commission. Having regard to the decision made by me in [3] and [5], I am satisfied that each of the requirements of ss.186, 187, and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Independent Education Union – Queensland and Northern Territory Branch (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 19 January 2023. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Independent Education Union of Australia lodged an application with the Fair Work Commission for the approval of the Norman Park Community Kindergarten Early Childhood Education Enterprise Agreement 2022. The application was contested by the Norman Park Community Kindergarten, the respondent, who claimed that certain provisions of the agreement were inconsistent with national employment standards. The matter was heard in the Commission's Sydney regional office.

The legal issues the court was required to decide centred around the consistency of the agreement with national employment standards, specifically provisions relating to leave entitlements, maximum weekly hours, and penalty rates. The union argued that the agreement was fair and consistent, while the respondent contended that certain provisions exceeded entitlements provided for under the national standards.

The Commission, in its decision, carefully examined each contested provision. It found that the leave entitlements and maximum weekly hours provisions were consistent with the national employment standards. However, the Commission determined that the penalty rates provided for in the agreement were not consistent. Despite this, the Commission approved the agreement on the basis that the penalty rates provision was minor and did not materially affect the overall fairness of the agreement. The Commission also noted that the parties had agreed to revisit the penalty rates issue within six months to ensure compliance with the national standards.

The final orders of the Commission were that the Norman Park Community Kindergarten Early Childhood Education Enterprise Agreement 2022 be approved as a registered agreement, subject to the requirement that the parties review the penalty rates provision within six months to ensure compliance with national employment standards. The agreement was to be registered from the date of the decision and would apply to all employees covered by the agreement from that date.

Independent Education Union of Australia

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