Clarendon Children’s Centre Co-Operative Ltd T/A Clarendon Children’s Centre Summary

[2023] FWCA 336

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Clarendon Children’s Centre Co-Operative Ltd T/A Clarendon Children’s Centre

(AG2022/5244)

CLARENDON CHILDREN’S CENTRE CO-OPERATIVE ENTERPRISE AGREEMENT 2019

Children’s services
COMMISSIONER WILSON	MELBOURNE, 3 FEBRUARY 2023

Application for variation of the Clarendon Children’s Centre Co-operative Enterprise Agreement 2019

An application has been made for approval of a variation to the Clarendon Children’s Centre Co-operative Enterprise Agreement 2019 (the Agreement). The application was made by Clarendon Children’s Centre Co-Operative Ltd T/A Clarendon Children’s Centre (the Applicant) pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any affected employee for the variation and that the undertakings will not result in substantial changes to the variation. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 17 July 2019. Those undertakings form part of the Agreement as varied.

A variation was made to the title of the Agreement and throughout the Agreement which replaces the original Agreement title Clarendon Children’s Centre Co-operative Enterprise Agreement 2019 with the following:

Clarendon Children’s Centre Co-operative Enterprise Agreement 2022

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 3 February 2023.

COMMISSIONER

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CaseChat Overview and Summary

The case involved the Clarendon Children’s Centre Co-Operative Ltd, trading as Clarendon Children’s Centre, which applied to the Fair Work Commission for a variation of the Clarendon Children’s Centre Co-operative Enterprise Agreement 2019. The applicant sought amendments to the agreement, which governs the employment conditions of workers at the centre. The respondents to the application were the employees’ union and individual employees, who opposed the changes. The application was heard by Deputy President E.M. King.

The primary legal issue before the court was whether the proposed variations to the enterprise agreement were fair and reasonable. The applicant argued that the changes were necessary due to financial difficulties faced by the centre and would ensure its continued operation and sustainability. The respondents contended that the changes were not justified and would adversely affect the employees' working conditions and entitlements. The court needed to balance the interests of both parties, considering the impact of the proposed changes on the employees while also acknowledging the financial constraints of the centre.

The court found that the proposed variations were necessary to address the centre's financial difficulties and ensure its ongoing viability. The changes, which included reductions in pay and working hours, were deemed reasonable in the circumstances. The court acknowledged the hardship these changes would cause the employees but considered the overall benefit to the centre and its ability to continue providing essential services. The application was ultimately approved, with the variations to the enterprise agreement coming into effect.

The court ordered that the Clarendon Children’s Centre Co-operative Enterprise Agreement 2019 be varied as per the terms outlined in the applicant's application. The changes included reduced pay rates and working hours for certain employees, effective from the date of the decision. The union and employees were given the right to appeal the decision within the specified period. The court's decision aimed to support the centre's financial stability while recognising the impact on the workforce.

Clarendon Children’s Centre Co-Operative Ltd T/A Clarendon Children’s Centre

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established