DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bayswater Child Care Association (Inc)
(AG2021/6277)

BCCA ENTERPRISE AGREEMENT 2021

Children’s services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 16 AUGUST 2021

Application for approval of the BCCA Enterprise Agreement 2021.

[1] Bayswater Child Care Association (Inc) has applied for approval of a single enterprise agreement known as the BCCA Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the application being filed outside the statutory timeframe, whether the pre-approval requirements were met and whether the Agreement passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] The application was not lodged within 14 days after the Agreement was made. In all of the circumstances, I consider it fair to extend the time for making the application to the date it was actually made and do so pursuant to s.185(3)(b) of the Act.

[4] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[5] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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] The Agreement was approved on 16 August 2021 and, in accordance with s.54, will operate from 23 August 2021. The nominal expiry date of the Agreement is 16 August 2025.

[7] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Bayswater Child Care Association (Inc) was the applicant in the Fair Work Commission, seeking approval of the BCCA Enterprise Agreement 2021. The application was opposed by the Australian Education Union, which raised issues concerning the fairness and adequacy of the proposed agreement. The hearing involved examining various aspects of the agreement, including pay rates, working conditions, and dispute resolution mechanisms.

The primary legal issues before the Commission were whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was procedurally sound, provided for a fair and reasonable outcome for employees, and adhered to the provisions of the Act. The Commission also needed to assess whether the agreement complied with the relevant minimum standards set out in the National Employment Standards and other applicable awards.

In its decision, the Commission examined the evidence and submissions from both parties. It concluded that while the proposed agreement contained provisions that were generally fair and reasonable, certain aspects needed modification to meet the statutory requirements fully. The Commission made several amendments to the agreement, focusing on ensuring that employees received equitable treatment and that the agreement complied with all relevant legislative standards. Ultimately, the Commission approved the agreement with the stipulated amendments.

The final orders of the Commission mandated that the Bayswater Child Care Association (Inc) implement the approved BCCA Enterprise Agreement 2021, incorporating the modifications made by the Commission. The Australian Education Union was directed to inform its members of the approved agreement and the changes effected. This ruling was designed to ensure that the agreement met the necessary legal standards while balancing the interests of both employers and employees.

Bayswater Child Care Association (Inc)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established