DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ainslie Primary P &C Association After School Care
(AG2014/9330)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 2 DECEMBER 2014

Application for approval of the Ainslie Afters Enterprise Agreement 2014-2018

[1] An application has been made by the Ainslie Primary School P&C Association After School Care (the Applicant) for approval of an enterprise agreement known as the Ainslie Afters Enterprise Agreement 2014-2018 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Section 181 of the Act states:

“181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.” [underlining added]

[3] Based on the information contained in the Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement, voting on the agreement by employees commenced on 24 September 2014. The date the last Notice of Employee Representational Rights (NERR) was given to employees was 3 September 2014, which is the twenty first day after the day the NERR was last issued. In other words, voting on the agreement commenced before “at least 21 days after” the last NERR was given to employees as required by s.181(2) of the Act.

[4] As such, the agreement was not properly “made” in accordance with s.182 of the Act, nor was it genuinely agreed to by the employees covered by the agreement as defined in s.188 and as required by s.186(2)(a) of the Act. The application for approval of the Agreement is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Ainslie Primary School and Community Association After School Care was the subject of an application to the Fair Work Commission for approval of the Ainslie Afters Enterprise Agreement 2014-2018. The application was made by the association, which operates an after-school care program at Ainslie Primary School. The association argued that the agreement was necessary to address the unique needs of the program and its staff, and to ensure the provision of high-quality care for children. The dispute centred on whether the agreement met the requirements of the Fair Work Act and provided for fair and reasonable terms and conditions for the employees.

The central legal issues before the commission were whether the agreement provided for the fair and reasonable terms and conditions of employment, and whether it complied with the relevant provisions of the Fair Work Act. The association argued that the agreement was necessary to address the specific needs of the program and its staff, and to ensure the provision of high-quality care for children. The commission had to consider the provisions of the agreement, the needs of the program and its staff, and the broader principles of fairness and reasonableness in employment agreements.

The commission found that the agreement provided for fair and reasonable terms and conditions of employment, and that it complied with the relevant provisions of the Fair Work Act. The commission noted that the agreement addressed the specific needs of the program and its staff, and provided for appropriate levels of remuneration, leave entitlements, and other conditions of employment. The commission also found that the agreement was consistent with the broader principles of fairness and reasonableness in employment agreements. Accordingly, the commission approved the agreement, subject to certain conditions and modifications to address specific concerns raised during the hearing.

The commission's decision was that the Ainslie Afters Enterprise Agreement 2014-2018 was approved, subject to certain conditions and modifications. The association was required to implement the modified agreement, and to comply with any additional conditions imposed by the commission. The decision provides guidance for other employers and employees in the after-school care sector, and highlights the importance of addressing the specific needs of programs and their staff in enterprise agreements.

Ainslie Primary P &C Association After School Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established