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[2011] FWAA 5992

DECISION Fair Work Act 2009 s.185—Enterprise agreement

Independent Education Union of Australia (AG2011/1886)

EAST STREET COMMUNITY KINDERGARTEN & PRESCHOOL EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2011 Educational services DEPUTY PRESIDENT SAMS

SYDNEY, 2 SEPTEMBER 2011

Application for approval of the East Street Community Kindergarten & Preschool Early Childhood Education Enterprise Agreement 2011. [1]

This is an application, pursuant to s 185 of the Fair Work Act 2009 (‘the Act’), filed

by the Independent Education Union of Australia - QLD/NT Branch (‘the Union’) which seeks the approval of Fair Work Australia (‘FWA’) of a single enterprise agreement to be known as the East Street Community Kindergarten & Preschool Early Childhood Education Enterprise Agreement 2011 (‘the Agreement’). The Agreement is to cover 5 employees, engaged by East Street Community Kindergarten & Preschool Inc (‘the employer’), who provide early childhood educational services at the employer’s premises in Scarness, Queensland. The Agreement is similar to a number of other agreements recently approved by FWA for community kindergartens in Queensland. [2]

The employees were notified of their representational rights on 22 June 2011, and

voting for the Agreement’s approval took place on 20 July, 2011. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot of the 5 employees, the Agreement was approved unanimously. The application for approval of the Agreement was lodged on 29 July, 2011, thereby satisfying the 14 day time limit pursuant s 185(3) of the Act. [3]

In the Employer’s Declaration in support of the application (Form 17) Ms P

Laskowski, President of the Preschool’s management committee, identified the Early Childhood Education Award 2003 [AN140100], the Educational Services (Teachers) Award

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[2011] FWAA 5992

2010 [MA000077] and the Children’s Services Award 2010 [MA000120] as the relevant reference instruments for the purposes of the Better Off Overall Test (‘BOOT’).

Ms

Laskowski declared that the Agreement provides for a number of less beneficial terms and conditions but also provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instruments. In particular, I note that the Agreement provides for an annual 4 per cent increase in the hourly rates of pay during the nominal term of the Agreement commencing from 1 July 2011. That increase has already been paid to employees.

The Agreement provides for the mandatory flexibility and

consultation clauses at Cl 1.10 and Cl 3.5 respectively and the required disputes resolution provision (Cl 1.8) provides for conciliation and binding arbitration by FWA. [4]

At a telephone hearing of the application on 29 August 2011, Ms Laskowski, appeared

for the employer, and Mr J Spriggs, appeared for the Union.

The Union had filed a

Declaration in support of the application (Form 18) and a Notice seeking to be covered by the Agreement (Form 22). For the purposes of s 201(2) of the Act, I note the Union is to be covered by the Agreement. Mr Spriggs outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by FWA. Ms Laskowski supported the Union’s submissions. [5]

Having considered the parties’ submissions and upon reviewing the terms of the

approval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single-enterprise agreement known as the East Street Community Kindergarten & Preschool Early Childhood Education Enterprise Agreement 2011. Pursuant to s 54 of the Act, the Agreement shall operate from 5 September 2011 and have a nominal expiry date of 31 December 2011.

DEPUTY PRESIDENT 2


[2011] FWAA 5992

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