Independent Education Union of Australia

[2023] FWCA 67

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Independent Education Union of Australia

(AG2022/5429)

MONTESSORI CHILDREN’S HOUSE EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2022

Educational services
COMMISSIONER SPENCER	BRISBANE, 10 JANUARY 2023

Application for approval of the Montessori Children’s House Early Childhood Education Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Montessori Children’s House Early Childhood Education 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 Montessori Children's House Limited (the Applicant). The Agreement is a single enterprise agreement.

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

The application was not lodged within 14 days after the Agreement was made. The Employer provided submissions as to the explanation for the late lodgement. On the basis of those submissions, pursuant to s 185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 January 2023. The nominal expiry date of the Agreement is 31 December 2025

COMMISSIONER

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CaseChat Overview and Summary

The Independent Education Union of Australia brought an application before the Fair Work Commission, seeking approval of the Montessori Children’s House Early Childhood Education Enterprise Agreement 2022. The agreement was entered into between the union and the Montessori Children’s House, an early childhood education provider, to govern the terms and conditions of employment for workers employed in that sector. The union sought to have the agreement certified as a single-employer agreement, meaning it would apply to all employees of Montessori Children’s House and not be subject to bargaining by other unions.

The primary legal issue before the Commission was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement was a “single-employer agreement” as defined in the Act, and if it complied with the “better off overall test,” which required that employees be no worse off financially and have at least the same conditions as they had before the agreement came into effect. The union argued that the agreement was a single-employer agreement and met the better off overall test, while the employer contended that the agreement did not meet the statutory requirements and should not be approved.

The Commission found that the agreement was a single-employer agreement and met the statutory requirements for approval. The Commission held that the agreement was made between the union and the employer, and covered all employees of Montessori Children’s House. The Commission further found that the agreement met the better off overall test, as employees would receive increased wages and improved conditions compared to their previous terms of employment. The Commission approved the agreement, finding that it met the statutory requirements and would provide employees with improved terms and conditions of employment.

The Commission certified the Montessori Children’s House Early Childhood Education Enterprise Agreement 2022 as a single-employer agreement, effective from the date of the decision. The agreement will apply to all employees of Montessori Children’s House and will govern their terms and conditions of employment. The employer is required to implement the agreement and comply with its terms, while the union is responsible for ensuring that its members are aware of their rights and obligations under the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established