Alpine Children’s Services Limited T/A Alpine Children’s Services

[2021] FWCA 5363

[2021] FWCA 5363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Alpine Children’s Services Limited T/A Alpine Children’s Services
(AG2021/6507)

ALPINE CHILDREN’S SERVICES ENTERPRISE AGREEMENT 2021

Educational services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 30 AUGUST 2021

Application for approval of the Alpine Children’s Services Enterprise Agreement 2021.

[1] Alpine Children’s Services Limited T/A Alpine Children’s Services (the Employer) has made an application for approval of an enterprise agreement known as the Alpine Children’s Services Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The copy of the Notice of Employee Representation Rights (NERR) provided to employees states that the Agreement is proposed to cover employees excluding the General Manager, the 3 Centre Coordinators (Alpine View, Mountain View and Lake View), the Human Resources Manager and the Finance Manager. However, clause 3 of the Agreement provides that the Agreement covers all employees excluding the Chief Executive Officer, Human Resources Manager and Finance Officer. The Employer provided a statutory declaration as to this error on 13 August 2021. I am satisfied having regard to this statutory declaration and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[3] Accordingly, notwithstanding the matters identified in paragraph 2 above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[4] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] I observe that clauses 33.2(f), 33.2(h) and 42.4(a) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 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.

[7] The Australian Education Union and the Australian Municipal, Administrative, Clerical and Services Union, being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they seek to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declarations provided by these organisations, I note that the Agreement covers these organisations.

[8] The Agreement was approved on 30 August 2021 and, in accordance with s 54, will operate from 6 September 2021. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

<AE512915  PR733315>

1   [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

Annexure A