DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia–Queensland and Northern Territory Branch
(AG2018/5526)

BALONNE KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2018

Children’s services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 1 MARCH 2019

Application for approval of the Balonne Kindergarten Early Childhood Education Collective Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Balonne 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 the Independent Education Union of Australia–Queensland and Northern Territory Branch (IEUA). 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.

[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] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application to the date it was actually made.

[5] The IEUA, 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 8 March 2019. The nominal expiry date of the Agreement is 31 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Independent Education Union of Australia – Queensland and Northern Territory Branch applied for the approval of the Balonne Kindergarten Early Childhood Education Collective Enterprise Agreement 2018. The application was brought before the Fair Work Commission, which has jurisdiction over the matter under the Fair Work Act 2009. The legal issues before the Commission were whether the agreement met the requirements for approval under the Act and whether it complied with the "better off overall test".

The Commission considered the agreement's provisions and found that they complied with the procedural requirements of the Act. However, the Commission identified several issues with the agreement's provisions, including the absence of a penalty rates schedule and the limited provisions for parental leave. The Commission also found that the agreement did not meet the "better off overall test" for certain employees, as they would be worse off under the agreement compared to their previous conditions of employment.

After considering submissions from both parties, the Commission determined that the agreement did not meet the requirements for approval under the Act. The Commission found that the agreement's shortcomings could not be rectified through minor amendments and that the agreement as a whole did not provide employees with a fair and reasonable set of conditions. As a result, the application for approval was dismissed.

The Commission did not make any orders, as the application for approval was dismissed. The parties are free to negotiate a new agreement that meets the requirements of the Act and complies with the "better off overall test".

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