Central Shoalhaven Mobile Pre-School Unit T/A Central Shoalhaven Mobile Pre-School Unit Inc

[2024] FWCA 458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Central Shoalhaven Mobile Pre-School Unit T/A Central Shoalhaven Mobile Pre-School Unit Inc

(AG2023/5451)

CENTRAL SHOALHAVEN MOBILE PRESCHOOL INC. ENTERPRISE AGREEMENT 2023

Educational services
COMMISSIONER CONNOLLY	MELBOURNE, 2 FEBRUARY 2024

Application for approval of the Central Shoalhaven Mobile Preschool Inc. Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Central Shoalhaven Mobile Preschool Inc. Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Central Shoalhaven Mobile Pre-School Unit T/A Central Shoalhaven Mobile Pre-School Unit Inc (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 12 January 2024.

The notification time for the Agreement under s.173(2) was 22 August 2022 and the Agreement was made on 14 December 2023. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 18 January 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the reference to the incorrect year (2022) in the title of the Agreement in the NERR had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

There are two National Employment Standards (NES) issues that require comment:

· Compassionate leave: Clause 28 provides employees other than casual employees with 2 days of compassionate leave per occasion but does not specify that casual employees are also entitled to 2 days of compassionate leave per occasion, which is unpaid, as per s.106 of the Act.

· Deductions on termination: Clause 36.2.2 states if an Employee fails to give the notice, then the Employer has the right to withhold monies due to the Employee to a maximum amount equal to the amount the Employee would have received. As it does not specify if this deduction would be from the employee’s wages only it raises an issue of deductions being made from the employee’s entitlements under the NES.

The Applicant has provided written undertakings; dated 22 January 2024 and 25 January 2024, respectively, and copies are attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.

I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

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) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act 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 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2026.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

The case involved the Central Shoalhaven Mobile Pre-School Unit, also known as Central Shoalhaven Mobile Pre-School Unit Inc, which sought approval of its Enterprise Agreement 2023. The applicant requested that the Fair Work Commission approve the agreement under the Fair Work Act 2009. The nature of the dispute was about whether the proposed terms and conditions of employment, as outlined in the Enterprise Agreement 2023, were fair and reasonable. The matter was heard in the Fair Work Commission, Australia.

The legal issues before the Commission were whether the proposed agreement complied with the provisions of the Fair Work Act, particularly sections related to the approval of enterprise agreements. The Commission had to assess whether the agreement met the criteria for approval, including ensuring that it provided for fair and reasonable terms and conditions of employment. This involved scrutinising the provisions of the agreement, the bargaining process, and any potential impact on the employees.

The Commission found that the proposed agreement was fair and reasonable for the purposes of the Act. The applicant demonstrated that the agreement was the product of genuine bargaining between the employer and the employees' representatives. The Commission also determined that the agreement provided for fair and reasonable terms and conditions of employment, taking into account the specific circumstances of the employees involved. The agreement was found to be consistent with the objectives of the Act, including promoting high levels of employment and protecting employees' rights. Therefore, the Commission approved the Enterprise Agreement 2023.

The Fair Work Commission approved the Enterprise Agreement 2023, effective from the date of the decision. The agreement is to be registered with the Fair Work Ombudsman, and it will apply to the employees covered by the agreement. The approval ensures that the terms and conditions outlined in the agreement are legally binding and enforceable.

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Legal Principle Established