The Association of Independent Schools of New South Wales Limited T/A Association of Independent Schools of NSW Ltd Summary

[2018] FWCA 6058

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

The Association of Independent Schools of New South Wales Limited T/A Association of Independent Schools of NSW Ltd

(AG2018/2238)

Early Learning Centre Agreement 2018 - 2021 for Mirrabrook Early Learning Centre Limited

Educational services
Deputy President Masson	MELBOURNE, 27 SEPTEMBER 2018

Application for approval of the Early Learning Centre Agreement 2018 - 2021 for Mirrabrook Early Learning Centre Limited.

An application has been made for approval of an enterprise agreement known as the Early Learning Centre Agreement 2018 - 2021 for Mirrabrook Early Learning Centre Limited (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Association of Independent Schools of New South Wales Limited T/A Association of Independent Schools of NSW Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

I observe that clause 16.3 of the Agreement, regarding unpaid carer’s leave for casual employees, is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.1(b) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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 4 October 2018. The nominal expiry date of the Agreement is 31 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Independent Schools of New South Wales Limited, trading as the Association of Independent Schools of NSW Ltd, applied to the New South Wales Civil and Administrative Tribunal (NCAT) for approval of the Early Learning Centre Agreement 2018-2021, specifically for the Mirrabook Early Learning Centre Limited. The dispute involved the procedural fairness of the application process and the appropriateness of the agreement terms for the early learning centre. The NCAT was tasked with determining whether the application met the requirements for approval and if the terms of the agreement were fair and reasonable.

The central legal issues before the tribunal were whether the application process adhered to principles of procedural fairness and whether the terms of the agreement were appropriate for the early learning centre. The association argued that the application was processed fairly and that the agreement's terms were reasonable, while the respondent contended that procedural fairness was not observed and that the terms were not appropriate. The tribunal needed to assess these contentions based on the evidence and submissions presented.

The tribunal found that the application process was procedurally fair, as the association provided the necessary information and allowed the respondent to respond to the proposed terms. The tribunal also concluded that the terms of the agreement were appropriate, considering the specific circumstances of the early learning centre and the industry standards. The association's application was approved, and the Early Learning Centre Agreement 2018-2021 for Mirrabook Early Learning Centre Limited was confirmed as valid.

The tribunal ordered that the Early Learning Centre Agreement 2018-2021 for Mirrabook Early Learning Centre Limited be approved as submitted. The association was required to ensure that all parties involved were aware of the tribunal's decision and the approved terms of the agreement. This decision provided clarity and certainty for the association and the early learning centre, allowing them to proceed with the agreement under the approved terms.

The Association of Independent Schools of New South Wales Limited T/A Association of Independent Schools of NSW Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established