Aspley East Kindergarten & Pre School Association Inc

[2019] FWCA 7129

[2019] FWCA 7129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aspley East Kindergarten & Pre School Association Inc
(AG2019/3678)

ASPLEY EAST KINDERGARTEN & PRE-SCHOOL ASSOCIATION INC. COLLECTIVE AGREEMENT 2018

Educational services
COMMISSIONER PLATT	ADELAIDE, 15 OCTOBER 2019

Application for approval of the Aspley East Kindergarten & Pre-school Association Inc. Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Aspley East Kindergarten & Pre-school Association Inc. Collective Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Aspley East Kindergarten & Pre School Association Inc. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 4 October 2019.

[3] On 10 October 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 11 October 2019. The undertaking deals with the following topics:

•  In relation to clause 3.1.2(c), the employer and part-time employee will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.

•  In relation to clause 3.2, if a Relief Assistant would be entitled under the Award to be paid at level 3.4 or above, the Employer will pay the Relief Assistant at the applicable Award rate for their classification.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the use of the older form had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 December 2021.

COMMISSIONER

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