DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia-Queensland and Northern Territory Branch
(AG2019/3774)

TULLY COMMUNITY PRESCHOOL & KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2018

Educational services
COMMISSIONER WILSON	MELBOURNE, 28 NOVEMBER 2019

Application for approval of the Tully Community Preschool & Kindergarten Early Childhood Education Collective Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Tully Community Preschool & Kindergarten Early Childhood Education Collective Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Independent Education Union of Australia-Queensland and Northern Territory Branch. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

[3] 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 December 2019. The nominal expiry date of the Agreement is 31 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Independent Education Union of Australia-Queensland and Northern Territory Branch to approve the Tully Community Preschool & Kindergarten Early Childhood Education Collective Enterprise Agreement 2018. The union sought approval of the agreement, which was intended to govern the employment conditions of early childhood educators within the Tully Community Preschool & Kindergarten. The union argued that the agreement provided fair and reasonable terms for its members, while the employer contested certain aspects of the agreement, focusing on its compliance with relevant legislation and fairness to all parties involved.

The central legal issue before the Commission was whether the collective enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. This included ensuring the agreement complied with the "better off overall test" (BOOT), which requires that no employee is worse off overall under the agreement compared to their existing conditions, and that the agreement was free from any prohibited content, such as terms that contravened minimum standards set by the National Employment Standards or other relevant laws. The employer challenged specific provisions of the agreement, arguing they did not meet the BOOT and contained terms that were unfair or not in accordance with legislative requirements.

The Commission carefully reviewed the terms of the agreement and the submissions from both parties. It examined the provisions that the employer contested, assessing whether they provided fair and reasonable terms for employees and complied with the legislative framework. The Commission found that while some of the contested provisions did not meet the BOOT, others were acceptable and aligned with the statutory requirements. The Commission made several modifications to the agreement to ensure compliance with the Fair Work Act 2009, particularly in relation to the BOOT and the avoidance of prohibited content. Ultimately, the Commission approved the agreement with these modifications, finding that it provided fair and reasonable terms for the employees while remaining compliant with the law.

In light of the above, the Fair Work Commission approved the Tully Community Preschool & Kindergarten Early Childhood Education Collective Enterprise Agreement 2018, subject to the modifications made to ensure compliance with the Fair Work Act 2009. The approved agreement now governs the employment conditions of the early childhood educators within the Tully Community Preschool & Kindergarten, providing a framework for fair and reasonable terms of employment for the union members.

Independent Education Union of Australia-Queensland and Northern Territory Branch

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established