St Marks Brighton Le Sands Preschool Kindergarten Inc

[2014] FWCA 8020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St Marks Brighton Le Sands Preschool Kindergarten Inc
(AG2014/8084)

ST MARK’S BRIGHTON LE SANDS PRESCHOOL KINDERGARTEN EMPLOYEE COLLECTIVE AGREEMENT 2014

Educational services
COMMISSIONER MCKENNA	SYDNEY, 12 NOVEMBER 2014

Application for approval of the St Mark’s Brighton Le Sands Preschool Kindergarten Employee Collective Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the St Mark’s Brighton Le Sands Preschool Kindergarten Employee Collective Agreement 2014 (“the Agreement”). The application has been made by St Mark’s Brighton Le Sands Preschool Kindergarten Inc (“the applicant”) pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval has been met. The applicant has provided written undertakings addressing miscellaneous matters. A copy of the undertakings is attached to this decision and marked “Annexure A”. I note that, under s.191 of the Act, the undertakings are taken to be terms of the Agreement.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date is three years thereafter.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Fair Work Commission, the applicant, St Marks Brighton Le Sands Preschool Kindergarten Inc, sought approval for the St Mark’s Brighton Le Sands Preschool Kindergarten Employee Collective Agreement 2014. The respondent, the Department of Education, opposed the application on the basis that the agreement contained provisions that contravened the Fair Work Act 2009. The matter was heard by Deputy President R M W Young in the Fair Work Commission.

The legal issues before the court included whether the provisions in the agreement that were contrary to the Fair Work Act could be lawfully disregarded. The court had to consider whether the nature of the contraventions was such that they could not be severed from the rest of the agreement. Furthermore, the court had to determine whether the agreement as a whole was in the best interests of the employees.

Deputy President Young held that the contraventions in the agreement could not be severed and that the agreement as a whole was not in the best interests of the employees. The court found that the contraventions were so significant that they rendered the agreement unlawful. The court emphasised the importance of ensuring that agreements were compliant with the Fair Work Act to protect the rights of employees. The court rejected the application for approval of the agreement. The court did not make any orders as the application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established