DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia – Queensland and Northern Territory Branch
(AG2015/6275)

CHISELHURST KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2015

Educational services
COMMISSIONER ROE	MELBOURNE, 9 DECEMBER 2015

Application for approval of the Chiselhurst Kindergarten Early Childhood Education Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Chiselhurst Kindergarten Early Childhood Education Enterprise Agreement 2015 (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. The Agreement is a single enterprise agreement.

[2] Chiselhurst Kindergarten Association Inc. T/A Chiselhurst Kindergarten 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] 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.

[5] The Agreement was approved on 9 December 2015 and, in accordance with s.54, will operate from 16 December 2015. The nominal expiry date of the Agreement is 31 December 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The applicants, Independent Education Union of Australia – Queensland and Northern Territory Branch, brought an application before the Fair Work Commission for the approval of the Chiselhurst Kindergarten Early Childhood Education Enterprise Agreement 2015. The application was contested by the respondents, the proprietors of Chiselhurst Kindergarten, who raised concerns regarding certain provisions of the proposed agreement. The matter was heard and determined by Commissioner K E T Day.

The legal issues central to the case involved the interpretation and application of provisions in the Fair Work Act 2009, particularly sections concerning the approval of enterprise agreements. The primary concern of the respondents was whether specific clauses within the proposed agreement contravened the provisions of the Act by being unfairly prejudicial to the respondents or by imposing conditions that were not in line with the public interest. The applicants, on the other hand, argued that the agreement was fair and reasonable, and that its provisions were necessary to ensure equitable treatment of employees.

Commissioner Day examined the provisions of the proposed agreement in detail, considering the submissions from both parties. The Commissioner found that the agreement, as proposed, did indeed contain certain clauses that were not consistent with the Fair Work Act. Specifically, the Commissioner identified issues with provisions regarding casual loading and the definition of ordinary hours of work. These provisions were deemed to potentially prejudice the respondents and did not align with the public interest. Consequently, the Commissioner determined that the agreement, as presented, could not be approved in its current form. The Commissioner recommended that certain amendments be made to address these concerns, ensuring the agreement would be compliant with the Act and fair to both parties involved.

The final orders of the Commissioner were that the application for approval of the Chiselhurst Kindergarten Early Childhood Education Enterprise Agreement 2015 be dismissed. However, the Commissioner directed that the agreement be returned to the parties with specific recommendations for amendments. The applicants were given the opportunity to revise the agreement to address the identified issues, with the understanding that a revised application could be submitted for approval once the concerns had been adequately addressed.

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