Birralee Kindergarten and Community Preschool Association Inc

[2016] FWCA 2468

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Birralee Kindergarten and Community Preschool Association Inc T/A

Birralee Kindy

(AG2016/768)

BIRRALEE KINDERGARTEN & COMMUNITY PRESCHOOL

ASSOCIATION INC. EARLY CHILDHOOD ENTERPRISE

AGREEMENT 2015-2016

Educational services

COMMISSIONER ROE

MELBOURNE, 19 APRIL 2016

Application for approval of the Birralee Kindergarten & Community Preschool Association

Inc. Early Childhood Enterprise Agreement 2015-2016.

[1] An application has been made for approval of an enterprise agreement known as the

Birralee Kindergarten & Community Preschool Association Inc. Early Childhood Enterprise

(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the

Act). It has been made by Birralee Kindergarten and Community Preschool Association Inc

T/A Birralee Kindy. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to

this application for approval have been met. The Agreement does not cover all of the

employees of the employer, however, taking into account the factors in Section 186(3) and

(3A) I am satisfied that the group of employees was fairly chosen.

[3] The Agreement was approved on 19 April 2016 and, in accordance with s.54, will

operate from 26 April 2016. The nominal expiry date of the Agreement is 31 December 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application for approval of the Birralee Kindergarten and Community Preschool Association Inc. Early Childhood Enterprise Agreement 2015-2016, the Fair Work Commission was presented with an application by Birralee Kindergarten and Community Preschool Association Inc. The application sought approval for the agreement under section 185 of the Fair Work Act 2009. The agreement in question was a single enterprise agreement applicable to the educational services sector.

The central legal issues before the Commission were whether the application met the requirements of sections 186, 187, and 188 of the Act, and whether the group of employees covered by the agreement was fairly chosen. The Commission needed to determine if the agreement covered all employees of the employer or if it was permissible for it to cover a subset of employees, taking into account the factors outlined in sections 186(3) and 186(3A) of the Act.

Upon reviewing the application and considering the relevant sections of the Act, the Commission concluded that the requirements for approval had been met. The Commission found that although the agreement did not cover all employees of the employer, it was satisfied that the group of employees was fairly chosen. This decision was made after weighing the factors outlined in sections 186(3) and 186(3A) of the Act. Consequently, the agreement was approved on 19 April 2016 and, in accordance with section 54 of the Act, it will operate from 26 April 2016, with a nominal expiry date of 31 December 2016.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established