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[2010] FWAA 6055

DECISION Fair Work Act 2009 s 185—Approval of enterprise agreement

Independent Education Union of Australia (AG2010/1702)



Application for approval of The Pioneer Community Pre-School and Kindergarten Early Childhood Education Enterprise Agreement 2010. [1]

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

by the Independent Education Union of Australia (‘the Union’) for the approval of Fair Work Australia (FWA) of a single-enterprise agreement known as The Pioneer Community PreSchool and Kindergarten Early Childhood Education Enterprise Agreement 2010 (‘the Agreement’). [2]

The employer is in the early childhood education industry in Mackay, Queensland.

This application is unusual in that it is lodged by the Union, although all the requisite approval process documentation (Form 17) has been filed by the employer, the Pioneer Community Pre-School and Kindergarten Association Inc.

The Union has also 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 that the Union is to be covered by the Agreement. [3]

The Agreement is to cover seven early childhood teachers and assistants and was

made following a unanimous vote of them on 22 June 2010. The Agreement was lodged on 2 July 2010, thereby satisfying the requirements of s 185(3) of the Act.


[2010] FWAA 6055


In the Employer’s Declaration signed by Ms Nicole Borosak, the relevant reference

instrument for the purposes of the Better Off Overall Test (BOOT) was said to be the Early Childhood Education Award 2003 [AN140100], the Educational Services (Teachers) Award 2010 [MA000077] and the Children’s Services Award 2010 [MA000120]. The Agreement provides for some less beneficial terms and some more beneficial terms than the reference instruments; for example, the wages are significantly higher as the following tables demonstrate: Teachers Rates at May 2010 Minimum / fortnight Maximum / fortnight

This Agreement $1735.37 $2765.45

NAPSA $1253.20 $1803.10

Modern Award $1467.34 $2050.33


Modern Award

$1016.40 $1066.00 $1132.00 $1132.00

$1114.00 $1364.20 No equivalent No equivalent

Assistants: Rates at May 2010 This Agreement Maximum No training $1294.18 1 year training $1385.74 2 years training $1507.64 3 years training $1629.03 [5]

In addition, the Agreement provides for a 4.5% wage increase from 1 July 2009 which

has already been paid and a further 4% wage increase from 1 July 2010. There are also improvements in superannuation and additional pupil free days. Agreement satisfies the BOOT.

I agree.

It was said that the

The Agreement provides for the mandatory

flexibility and consultation terms at cl 1.10 and 3.5 respectively and a dispute resolution clause (1.8) provides for consent arbitration by FWA. [6]

At a hearing of the application on 23 July 2010, Mr J Spriggs appeared for the Union.

He submitted that up until late last year, community kindergartens were generally covered by agreements in the State jurisdiction. However, last year the Union negotiated a Federal agreement with an organisation representing 30 to 40 kindergartens known as the Creche and Kindergarten Association.

A model agreement was developed and other individual

community operated kindergartens were invited to be covered by it and suggest changes where appropriate to their own particular workplace.


[2010] FWAA 6055


Mr Spriggs confirmed that the Agreement meets the BOOT and is, in all other

respects, compliant with the Act. The Agreement will have a nominal expiry date of the end of the year. This was explained as being due to funding changes initiated by the State Government to come into effect at the beginning of 2011. Mr Spriggs said that the model Agreements in the industry will provide the base for the parties to address the challenges of the new funding regime. Ms Borosak, who is the President of the Pre-School, supported the Union’s submissions. [8]

Having heard the submissions of the parties and upon reviewing the terms of the

approval process documentation and the Agreement itself, I am well 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 Pioneer Community Pre-School and Kindergarten Early Childhood Education Enterprise Agreement 2010. Pursuant to s 54 of the Act, the Agreement shall operate from 30 July 2010 and have a nominal expiry date of 31 December 2010.

DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code {G}, AE879827 PR500340>