DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia – Queensland and Northern Territory Branch
(AG2018/5256)

JAMBOREE COMMUNITY KINDERGARTEN INC. COLLECTIVE AGREEMENT 2018

Educational services
COMMISSIONER WILSON	MELBOURNE, 19 FEBRUARY 2019

Application for approval of the Jamboree Community Kindergarten Inc. Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Jamboree Community Kindergarten Inc. Collective 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.

[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.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 February 2019. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The respondents, Independent Education Union of Australia – Queensland and Northern Territory Branch, and the Australian Education Union – Queensland Branch, sought approval of the Jamboree Community Kindergarten Inc. Collective Agreement 2018. The applicant, Jamboree Community Kindergarten Inc., opposed the approval on the grounds that the union did not represent a sufficient proportion of the kindergarten's employees. The dispute was heard in the Fair Work Commission, the tribunal with jurisdiction over employment disputes under Australian labour law.

The central legal issue before the tribunal was whether the union had demonstrated that it represented a sufficient proportion of employees for the agreement to be approved under the Fair Work Act 2009. The union argued that it had established its representative capacity through a combination of membership figures, employee statements, and evidence of recent industrial activity. The applicant countered that the union had not provided sufficient evidence to meet the statutory threshold for approval.

The tribunal assessed the evidence provided by both parties and determined that the union had failed to demonstrate that it represented a sufficient proportion of employees. The union's membership figures and employee statements were insufficient to meet the threshold required by the Fair Work Act. Additionally, the tribunal found that the union had not adequately demonstrated recent industrial activity that would support a finding of representative capacity. Consequently, the tribunal did not approve the collective agreement.

The Fair Work Commission refused the application for approval of the collective agreement. The tribunal found that the union had not provided sufficient evidence to establish its representative capacity among the employees of the kindergarten. As a result, the agreement was not approved, and the union's application was dismissed.

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