s.185 - Application for approval of a single-enterprise agreement

Application for approval of the IEUA (NSW/ACT) Staff Enterprise Agreement 2025

[1] An application has been made for approval of an enterprise agreement known as the IEUA (NSW/ACT) Staff Enterprise Agreement 2025 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Independent Education Union of Australia (Applicant). The Agreement is a single enterprise agreement.

[2] The material filed in support of the application disclosed a discrepancy in the title of the agreement that covered the employees to whom the Notice of Employee Representational Rights (NERR) was issued. The applicant advised that this was a typographical error and that in the circumstances, the employees were not disadvantaged by the error. The error is a minor technical error for the purposes of s.188(5) of the Act and I am satisfied that the employees were not likely to have been disadvantaged by the error. I propose to disregard the error in accordance with the aforementioned section.

[3] The Applicant has provided a written undertaking (Annexure A). Pursuant to s. 190(4) of the Act the views of the bargaining representatives were sought in relation to the undertaking. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. In accordance with s.191 of the Act the undertaking is taken to be a term of the Agreement.

[4] Clause 3.3 of the Agreement provides that, "the National Employment Standards continue to apply to Employees covered by this Agreement, except where this Agreement provides a more favourable outcome for the Employee in a particular respect." I am satisfied that this clause resolves any issue in relation to inconsistencies with the NES in clause 13.3(b) of the Agreement.

[5] Clause 26 of the Agreement contains a workplace delegates' rights term. Following the making of the Agreement, the Full Court of the Federal Court of Australia (Court) published a decision relating to delegates' rights terms in modern awards in the matter of[ ]Construction, Forestry and Maritime Employees Union v Australian Industry Group.11 [2025] FCAFC 187. Since that decision and in response to the conclusions of the Court, a Full Bench of the Commission[2] has determined that all modern awards are to be varied to include a new delegates' rights clause. This includes the Clerks - Private Sector Award 2020 [MA000002] (Award), which is the underpinning award for the Agreement. The Full Bench determined that the operative date for the new clauses would be 1 July 2024. Submissions were sought from the parties as to the terms of the proposed delegates' rights clause and the effect of these decisions. I am of the view that the delegates' rights term in the Agreement is less favourable than the corresponding term that now appears in the Award[3] and in accordance with s.201(1A) of the Act, note that the delegates' rights term in the Award is taken to be a term of the Agreement.

[6] Having regard to the undertaking referred to above and the material filed in support of the application, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertaking is taken to be a term of the Agreement.

[7] The Independent Education Union of Australia (IEUA) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the IEUA.

[8] The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 8 October 2028.

[2] [2026] FWCFB 5.

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