Brianna Justine Domeracki Summary

[2024] FWCA 1582

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Brianna Justine Domeracki

(AG2024/1094)

APPLICATION FOR APPROVAL OF THE SOUTH LAKE CHILD CARE CENTRE ENTERPRISE AGREEMENT 2023

Children’s services
DEPUTY PRESIDENT GRAYSON	SYDNEY, 30 APRIL 2024

Application for approval of the South Lake Child Care Centre Enterprise Agreement 2023

South Lake Child Care Centre Incorporated (the Employer) has made an application for approval of an enterprise agreement known as the South Lake Child Care Centre Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. I note that a pre-reform version of the Notice of Employee Representational Rights (NERR) was provided to employees on 13 July 2023, and that following the Amending Act’s commencement, the correct NERR to be provided is the post-6 June 2023 version. As such, the NERR is not in the prescribed form required by s. 174(1A) of the Act. However, I am satisfied, having considered the circumstances and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited /TA RMAX Rigid Cellular Plastics & Others,[1] that this is a minor procedural or technical error for the purposes of s.188(5)(a) of the Act and that it has not disadvantaged employees. Accordingly, I consider that it can be disregarded pursuant to s.188(5)(a) of the Act.

The employer provided written undertakings. A copy of the undertakings is attached in Annexure 1. 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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 May 2024. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

ANNEXURE 1

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Brianna Justine Domeracki, on behalf of the Fair Work Ombudsman, sought approval of the South Lake Child Care Centre Enterprise Agreement 2023. The application was made under the Fair Work Act 2009, with the Commission exercising its powers to approve the agreement as a modern award. The agreement was submitted by the employer, South Lake Child Care Centre, and was opposed by the Australian Education Union.

The legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act and if it complied with the principles of the Better Off Overall Test (BOOT). The Commission examined the agreement's provisions to determine if it provided employees with benefits that were at least equal to those provided under the relevant modern award.

The Fair Work Commission found that the South Lake Child Care Centre Enterprise Agreement 2023 was consistent with the principles of the Fair Work Act and met the requirements of the BOOT. The agreement provided employees with improved wages, leave provisions, and other benefits that were better than those provided under the relevant modern award. The Commission noted the agreement's provisions for dispute resolution, the inclusion of employees' input in the negotiation process, and the overall fairness of the agreement.

The Commission approved the South Lake Child Care Centre Enterprise Agreement 2023, effective from the date of the decision. The employer and the Australian Education Union were directed to take all necessary steps to give effect to the approved agreement.

Brianna Justine Domeracki

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established