Independent Education Union of Australia NSW/ACT Branch

[2013] FWCA 951

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia NSW/ACT Branch
(AG2012/14548)

JACK & JILL KINDERGARTEN TEACHERS’ ENTERPRISE AGREEMENT 2013

Educational services
VICE PRESIDENT LAWLER	SYDNEY, 11 FEBRUARY 2013

Application for approval of the Jack & Jill Kindergarten Teachers’ Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Jack & Jill Kindergarten Teachers’ Enterprise Agreement 2013 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Independent Education Union of Australia NSW/ACT Branch. The Agreement is a single-enterprise agreement.

[2] 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.

[3] The Independent Education Union of Australia NSW/ACT Branch 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 this organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 February 2013. The nominal expiry date of the Agreement is 31 August 2016.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Independent Education Union of Australia NSW/ACT Branch, applied to the Fair Work Commission for approval of the Jack & Jill Kindergarten Teachers’ Enterprise Agreement 2013. The respondents were Jack & Jill Kindergartens and a number of employers associated with them. The nature of the dispute was the procedural fairness of the process by which the agreement was reached and its approval.

The primary legal issue for the court was whether the agreement was made in accordance with the Fair Work Act 2009 and the procedural fairness principles. The court needed to determine if there was evidence of genuine bargaining, if the employees had an opportunity to be involved in the bargaining process, and if the agreement met the criteria for being considered a small business enterprise agreement. Additionally, the court had to consider whether the application for approval was made in a timely manner.

The court found that the agreement was made in a procedurally fair manner, with genuine bargaining evident and employees having an opportunity to participate. The agreement was deemed to meet the criteria for a small business enterprise agreement. The application for approval was also considered timely, as it was lodged within the required period. Consequently, the court approved the agreement.

The court ordered that the Jack & Jill Kindergarten Teachers’ Enterprise Agreement 2013 be approved as a registered agreement under the Fair Work Act 2009, effective from the date of the application. The approval was subject to the agreement being lodged with the Registrar of the Fair Work Commission within the prescribed timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established