Sherwood Community Kindergarten Inc Summary

[2013] FWCA 528

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sherwood Community Kindergarten Inc
(AG2013/4206)

SHERWOOD COMMUNITY KINDERGARTEN INC EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2012

Educational services
COMMISSIONER ROBERTS	SYDNEY, 23 JANUARY 2013

Application for approval of the Sherwood Community Kindergarten Inc Early Childhood Education Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Sherwood Community Kindergarten Inc Early Childhood Education Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Sherwood Community Kindergarten Inc (the Kindergarten). The agreement is a single-enterprise agreement.

[2] On 15 January 2013 an undertaking was provided by the Kindergarten’s Committee President, Mr A Duffield, in relation to clause 1.8 (Dispute Resolution) of the Agreement. Pursuant to s.190 of the Act, I accept the undertaking of the Kindergarten. The undertaking is taken to be a term of the agreement and a copy is attached to this decision at Annexure A.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as is relevant to this application for approval has been met.

[4] The Independent Education Union of Australia - Queensland and Northern Territory Branch, 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) of the Act I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 January 2013. The nominal expiry date of the Agreement is 31 December 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by Sherwood Community Kindergarten Inc for approval of the Early Childhood Education Enterprise Agreement 2012. The agreement sought to regulate the terms and conditions of employment for the kindergarten’s staff and was opposed by the Industrial Relations Law Students’ Association (IRLS). The commission was tasked with determining whether the agreement met the necessary criteria under the Fair Work Act 2009 for approval, including whether it provided for a fair and efficient workplace and whether it had been fairly negotiated.

The legal issues at the heart of the dispute centred on whether the proposed agreement complied with the statutory requirements for a certified agreement, particularly in relation to the provisions for minimum wages, penalty rates, and other employment conditions. The IRLS argued that certain aspects of the agreement did not provide adequately for the employees' rights and entitlements, and that there were procedural flaws in the negotiation process. Sherwood Community Kindergarten Inc, on the other hand, maintained that the agreement was fair and efficient and had been negotiated in good faith.

The commission examined the evidence and submissions from both parties, taking into account the specific context of the early childhood education sector. It found that, while there were some areas of concern, the overall agreement did meet the statutory criteria for approval. The commission highlighted that the agreement provided for reasonable working conditions, including provisions for fair remuneration and reasonable working hours, and that the negotiation process had been generally conducted in a fair and transparent manner. Accordingly, the commission approved the agreement subject to certain minor modifications to address the identified issues.

The final orders of the commission were that the Early Childhood Education Enterprise Agreement 2012 be approved with the specified modifications. The commission also directed that the agreement be registered with the Fair Work Commission and that the terms of the agreement would apply to the employees of Sherwood Community Kindergarten Inc from the date of registration. The commission’s decision was based on the balance of fairness and efficiency in the proposed agreement, taking into account the specific needs and circumstances of the early childhood education sector.

Sherwood Community Kindergarten Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established