Baringa Child Care Centre Incorporated

[2023] FWCA 1145

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Baringa Child Care Centre Incorporated

(AG2023/775)

BARINGA CHILD CARE CENTRE INCORPORATED ENTERPRISE AGREEMENT 2021

Children’s services
COMMISSIONER P RYAN	SYDNEY, 21 APRIL 2023

Application for approval of the Baringa Child Care Centre Incorporated Enterprise Agreement 2021

Baringa Child Care Centre Incorporated (Applicant) has made an application for approval of an enterprise agreement known as the Baringa Child Care Centre Incorporated Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Regulation 2.06 Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (FW Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the FW Act.

Section 190 Undertakings

The employer 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

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.

Model Flexibility Term

The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the FW Act, the model flexibility term prescribed by the FW Regulations is taken to be a term of the Agreement.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 28 April 2023. The nominal expiry date of the Agreement is 28 April 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent matter of Baringa Child Care Centre Incorporated, the Fair Work Commission was called upon to consider the application for approval of the Baringa Child Care Centre Incorporated Enterprise Agreement 2021. The applicant, Baringa Child Care Centre Incorporated, sought to have the agreement approved under the Fair Work Act 2009. The dispute centred on the terms and conditions of employment for the centre's staff, including aspects such as remuneration, working hours, and other employment-related provisions.

The central legal issues before the Commission involved whether the agreement met the requirements of the Fair Work Act, particularly concerning the fairness and reasonableness of the proposed terms and conditions. This included scrutinising whether the agreement provided for a fair and reasonable method of determining rates of pay, whether it complied with the safety net provisions, and whether it met the "better off overall test". Furthermore, the Commission had to assess whether the agreement was free from any illegality or inequity.

The Commission, after thoroughly examining the application and the agreement, concluded that the Baringa Child Care Centre Incorporated Enterprise Agreement 2021 complied with the statutory requirements and was fair and reasonable. The Commission noted that the agreement provided for a comprehensive set of terms and conditions that were consistent with the enterprise's operational needs and the employees' welfare. The proposed rates of pay, leave entitlements, and other conditions were deemed to be in line with industry standards and met the safety net provisions. The Commission found that the agreement passed the better off overall test, indicating that the employees would not be worse off under the new agreement.

In light of the findings, the Fair Work Commission approved the Baringa Child Care Centre Incorporated Enterprise Agreement 2021. The approval took effect from the date specified in the agreement, ensuring that the new terms and conditions would apply to the relevant employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established