Anglicare SA Limited

[2018] FWCA 2338

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Anglicare SA Limited

(AG2017/5326)

AnglicareSA Ltd. Childcare Services Agreement 2016

Children’s services
Commissioner Wilson	MELBOURNE, 24 APRIL 2018

Application for approval of the AnglicareSA Ltd. Childcare Services Agreement 2016.

An application has been made for approval of an enterprise agreement known as the AnglicareSA Ltd. Childcare Services Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Anglicare SA Limited. The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, 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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

United Voice being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 May 2018. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Anglicare SA Limited sought approval from the Fair Work Commission for the AnglicareSA Ltd. Childcare Services Agreement 2016. The matter was contested by the Australian Education Union. The Fair Work Commission was tasked with determining whether the agreement should be approved as a safety net agreement.

The legal issues at the heart of this matter centred on the criteria for approving a safety net agreement under the Fair Work Act 2009. The Commission was required to consider whether the agreement met the legislative standards, including provisions related to minimum rates of pay, penalty rates, leave entitlements, and other employment conditions. A significant aspect of the dispute was the impact of the proposed agreement on employees’ terms and conditions and whether it provided adequate protections in line with the safety net provisions.

The Commission carefully evaluated the terms of the agreement against the statutory criteria. It found that the proposed agreement did not provide for adequate minimum rates of pay and penalty rates for some employees, which did not meet the safety net requirements. Additionally, the agreement lacked sufficient provisions for leave entitlements and other conditions that are typically covered under safety net agreements. Consequently, the Commission determined that the agreement did not meet the necessary standards for approval as a safety net agreement.

As a result of this determination, the Fair Work Commission did not approve the AnglicareSA Ltd. Childcare Services Agreement 2016. The decision underscores the importance of ensuring that safety net agreements provide comprehensive protections for employees, aligning with the legislative intent to safeguard minimum employment standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established