DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Springwood Community Kindergarten Association Inc.
(AG2021/4502)

SPRINGWOOD COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2020-2023

Children’s services
COMMISSIONER YILMAZ	MELBOURNE, 22 APRIL 2021

Application for approval of then Springwood Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the Springwood Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Springwood Community Kindergarten Association Inc. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] 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.

[4] The Agreement is approved and in accordance with s.54, will operate from 29 April 2021. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Springwood Community Kindergarten Association Inc. sought approval of the Springwood Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2020-2023, which was the subject of an application to the Fair Work Commission. The applicant argued that the agreement was suitable for approval and registration, while the respondent argued that the agreement contained terms that were not genuinely intended to be bargained over and should therefore not be approved.

The central legal issue before the court was whether the terms in the agreement were genuinely intended to be bargained over, as required by the Fair Work Act 2009. The court had to consider the conduct of the parties during the negotiation process and whether there was a genuine intention to bargain over the terms. Additionally, the court had to determine whether the agreement contained any terms that were unfair or contrary to public policy.

In assessing the genuine intention to bargain over the terms, the court found that there was evidence of a genuine negotiation process between the parties. The court also found that the terms in the agreement were not contrary to public policy and were not unfair. The court was satisfied that the agreement contained terms that were genuinely intended to be bargained over and that the agreement was suitable for approval and registration.

The court approved the agreement and ordered that it be registered. The decision emphasised the importance of genuine bargaining in the negotiation of enterprise agreements and the need for such agreements to comply with the requirements of the Fair Work Act 2009.

Springwood Community Kindergarten Association Inc.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established