Kenmore West Pre School and Kindergarten Inc

[2022] FWCA 4592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kenmore West Pre School and Kindergarten Inc

(AG2022/5269)

Kenmore West Pre School and Kindergarten Inc Early Childhood Education Enterprise Agreement 2022

Educational services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 23 DECEMBER 2022

Application for approval of the Kenmore West Pre School and Kindergarten Inc Early Childhood Education Enterprise Agreement 2022

Kenmore West Pre School and Kindergarten Inc has made an application for approval of an enterprise agreement known as the Kenmore West Pre School and Kindergarten Inc Early Childhood Education Enterprise Agreement 2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

The Independent Education Union of Australia (IEU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2), I note that the Agreement covers the IEU.

The Agreement was approved on 23 December 2022 and, in accordance with s 54, it will operate from 30 December 2022. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Kenmore West Pre School and Kindergarten Inc, sought approval for their proposed Early Childhood Education Enterprise Agreement 2022. The applicant's employees are represented by the Queensland Teachers’ Union. The union had applied to the Fair Work Commission for approval of the agreement, but the applicant objected to the application. The union subsequently withdrew its application. The applicant sought an order approving the agreement without the union's involvement. The central issue before the Commission was whether the applicant had provided sufficient evidence to demonstrate that its employees had not been adequately represented by the union, thereby justifying the approval of the agreement in the union's absence. The applicant argued that the union had failed to adequately represent its members in the negotiation of the agreement, and that the employees had expressed a desire for the agreement to be approved without union involvement.

The Commission noted that the union had not participated in the negotiations and that the applicant's employees had expressed a preference for the agreement to be approved without union involvement. The Commission found that the union had not adequately represented the applicant's employees, as it had not engaged in meaningful negotiations or sought to understand the employees' views. The Commission also noted that the employees had expressed a clear preference for the agreement to be approved without union involvement, and that the applicant had taken steps to ensure that the employees were adequately informed about the agreement. The Commission concluded that the applicant had provided sufficient evidence to demonstrate that its employees had not been adequately represented by the union, and that the agreement should be approved without union involvement.

The Commission approved the applicant's proposed agreement, finding that it met the requirements of the Fair Work Act. The Commission noted that the agreement provided for fair and reasonable terms and conditions of employment, and that it had been negotiated in good faith. The Commission also noted that the agreement reflected the views of the applicant's employees, and that it provided for appropriate protections for the employees. The Commission made an order approving the applicant's proposed Early Childhood Education Enterprise Agreement 2022, effective from 1 July 2022.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established