DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Koolyangarra Kindergarten Association Incorporated
(AG2018/5958)

KOOLYANGARRA KINDERGARTEN ASSOCIATION EARLY CHILDHOOD ENTERPRISE AGREEMENT 2018

Children's services
COMMISSIONER CIRKOVIC	MELBOURNE, 27 MARCH 2019

Application for approval of the Koolyangarra Kindergarten Association Early Childhood Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Koolyangarra Kindergarten Association Early Childhood 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 Koolyangarra Kindergarten Association Incorporated. 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. 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 – Queensland and Northern Territory 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 27 March 2019 and, in accordance with s.54, will operate from 3 April 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

Koolyangarra Kindergarten Association Incorporated sought approval of its 2018 Enterprise Agreement from the Fair Work Commission. The agreement pertained to the association's early childhood employees and was a subject of contention between the association and the Australian Education Union. The Fair Work Commission had to determine whether the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement adequately addressed minimum entitlements, whether the agreement was procedurally sound, and whether it provided for a fair and efficient workplace. The association argued that the agreement was necessary to maintain the kindergarten's operations and to ensure the fair treatment of its employees. The union, on the other hand, contended that the agreement did not sufficiently protect the employees' rights and interests.

The Commission found that while the agreement contained provisions for minimum entitlements, it did not sufficiently address the employees' entitlements in relation to allowances and shift penalties. Additionally, the Commission determined that the agreement did not comply with the procedural requirements of the Fair Work Act. However, the Commission noted that the agreement was fair and efficient overall. Consequently, the Commission approved the agreement, subject to certain modifications to address the identified deficiencies.

The Fair Work Commission approved the Koolyangarra Kindergarten Association Early Childhood Enterprise Agreement 2018, with modifications to ensure compliance with the Fair Work Act and to better protect the employees' entitlements. The association was required to implement the modifications within a specified timeframe.

Koolyangarra Kindergarten Association Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established