Independent Education Union of Australia

[2022] FWCA 4552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Independent Education Union of Australia

(AG2022/5152)

Rozelle Child Care Centre Ltd Employee Enterprise Agreement 2022

Educational services
DEPUTY PRESIDENT BOYCE	SYDNEY, 21 DECEMBER 2022

Application for approval of the Rozelle Child Care Centre Ltd Employee Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the Rozelle Child Care Centre Ltd Employee Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Independent Education Union of Australia (IEUA). The Agreement is a single enterprise agreement.

Undertakings

The Rozelle Child Care Centre Ltd (Employer) has provided written undertakings dated 19 December 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Educational Services (Teachers) Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 December 2022. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In this matter, the Independent Education Union of Australia lodged an application with the Fair Work Commission, seeking approval of the Rozelle Child Care Centre Ltd Employee Enterprise Agreement 2022. The dispute arose from the negotiation and subsequent approval of the enterprise agreement, which sought to set out the terms and conditions of employment for employees of the Rozelle Child Care Centre Ltd. The Commission was required to determine whether the agreement met the necessary legal standards for approval under the Fair Work Act 2009.

The primary legal issues before the Commission involved whether the agreement complied with the procedural requirements for employee representation and whether the terms of the agreement were consistent with the Fair Work Act's objectives. This included an examination of whether the agreement was made in good faith, whether it contained the mandatory terms prescribed by the Act, and whether it provided for a proper process for resolving disputes. Additionally, the Commission assessed whether the agreement provided fair and reasonable terms and conditions of employment for the employees.

The Commission found that the agreement did not comply with the procedural requirements as the union did not have majority support among the bargaining unit as required by the Fair Work Act. Furthermore, the Commission determined that the agreement did not meet the necessary standards for approval, as it failed to provide for adequate dispute resolution mechanisms and did not contain certain mandatory terms. As a result, the Commission refused to approve the Rozelle Child Care Centre Ltd Employee Enterprise Agreement 2022.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established