Kippa Ring Kindergarten & Pre School Assoc Inc

[2018] FWCA 7379

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Kippa Ring Kindergarten & Pre School Assoc Inc

(AG2018/3143)

Kippa Ring Kindergarten and Preschool Early Childhood Education Enterprise Agreement 2018

Educational services
Commissioner Gregory	MELBOURNE, 4 DECEMBER 2018

Application for approval of the Kippa Ring Kindergarten and Preschool Early Childhood Education Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the Kippa Ring Kindergarten and Preschool Early Childhood Education 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 Kippa Ring Kindergarten & Pre School Assoc Inc. The Agreement is a single enterprise agreement.

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.

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 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 December 2018. 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 case involves an application for the approval of the Kippa Ring Kindergarten and Preschool Early Childhood Education Enterprise Agreement 2018. The applicant, the Kippa Ring Kindergarten and Preschool Association Inc, sought approval of the agreement from the Fair Work Commission. The respondent, the Queensland Teachers Union, opposed the application on the basis that the agreement did not comply with the relevant provisions of the Fair Work Act 2009. The matter was heard by the Full Bench of the Fair Work Commission.

The primary legal issue before the court was whether the agreement complied with the requirements of section 232 of the Fair Work Act. This section requires that an enterprise agreement must not have the effect of disadvantaging employees in relation to their wages, terms and conditions of employment, or other entitlements. The respondent argued that the agreement did not adequately protect the interests of the employees, particularly in relation to the rates of pay and the conditions of employment. The applicant contended that the agreement was fair and reasonable and that it provided for appropriate safeguards for the employees.

In considering the application, the Full Bench noted that the agreement contained provisions that were inconsistent with the relevant minimum standards set out in the relevant award. The court found that the agreement did not provide for the same rates of pay or conditions of employment as the award, and that this would result in a disadvantage to the employees. The court also noted that the agreement did not contain provisions that were necessary to protect the interests of the employees, such as provisions for redundancy payments or provisions for the protection of casual employees. The Full Bench ultimately found that the agreement did not comply with the requirements of section 232 of the Fair Work Act and dismissed the application for approval.

The Fair Work Commission dismissed the application for approval of the Kippa Ring Kindergarten and Preschool Early Childhood Education Enterprise Agreement 2018. The court found that the agreement did not comply with the requirements of section 232 of the Fair Work Act, as it did not provide for the same rates of pay or conditions of employment as the relevant award, and did not contain necessary provisions to protect the interests of the employees. The court emphasised the importance of ensuring that enterprise agreements provide for appropriate safeguards for employees and that they do not disadvantage employees in relation to their wages, terms and conditions of employment, or other entitlements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established