Burwood Neighbourhood Child Care Co-Op Ltd T/A Elm St Early Learning Centre

[2024] FWCA 614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Burwood Neighbourhood Child Care Co-Op Ltd T/A Elm St Early Learning Centre

(AG2024/12)

ELM ST EARLY LEARNING CENTRE ENTERPRISE AGREEMENT 2022

Children’s services
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 FEBRUARY 2024

Application for approval of the Elm St Early Learning Centre Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Elm St Early Learning Centre Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Burwood Neighbourhood Child Care Co-Op Ltd T/A Elm St Early Learning Centre. 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, which commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 28 November 2022, the genuine agreement requirements for agreement approval in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023 apply to the present application. Further, as the Agreement was made on 19 December 2023 the better off overall test provisions in Part 2-4 of the Fair Work Act as amended on 6 June 2023 apply.

The Employer has 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.

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.

I note that clause 29.1(d)-(e) may be inconsistent with the National Employment Standards (NES). Given the NES precedence clause at clause 4.2(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Independent Education Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 February 2024. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The parties involved in the case were Burwood Neighbourhood Child Care Co-Op Ltd, trading as Elm St Early Learning Centre, and the Fair Work Commission. The dispute centred on the approval of the proposed Enterprise Agreement 2022. The case was heard in the Fair Work Commission.

The central legal issues before the Commission involved assessing whether the agreement met the necessary requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to determine whether the agreement was made in good faith, whether it provided for a fair and reasonable process for resolving disputes, and if it contained provisions that were fair and reasonable in all other respects. The Commission also had to ensure that the agreement did not have the effect of undermining the operation of the national workplace relations system.

The Fair Work Commission found that the agreement was made in good faith and contained provisions that were fair and reasonable. The Commission noted that the agreement provided for a fair and reasonable process for resolving disputes, and that it did not have the effect of undermining the national workplace relations system. The Commission also found that the agreement contained provisions that were necessary to ensure the efficient operation of the centre, and that these provisions were fair and reasonable. The Commission approved the agreement, subject to certain minor modifications.

The Fair Work Commission approved the Enterprise Agreement 2022, subject to certain minor modifications. The modifications included changes to the dispute resolution process and the removal of certain provisions that were found to be inconsistent with the national workplace relations system. The modifications were designed to ensure that the agreement met all the necessary requirements for approval under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established