Cooroy Community Kindergarten Inc.

[2021] FWCA 2564

[2021] FWCA 2564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Cooroy Community Kindergarten Inc.
(AG2021/4824)

COOROY COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2020

Educational services
COMMISSIONER HUNT	BRISBANE, 12 MAY 2021

Application for approval of the Cooroy Community Kindergarten Early Childhood Education Enterprise Agreement 2020.

[1] Cooroy Community Kindergarten Inc. (the Employer) has applied for approval of an enterprise agreement known as the Cooroy Community Kindergarten Early Childhood Education Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On allocation to my chambers, I raised a concern with the Employer that it appeared employees were provided with details of the vote on 10 March 2021, and the voting commenced on the same day.

[3] Section 180 of the Act provides as below:

“180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre‑approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

(4) The access period for a proposed enterprise agreement is the 7‑day period ending immediately before the start of the voting process referred to in subsection 181(1).

Employees must be given copy of disclosure documents etc.

(4A) If an organisation gives the employer a document under section 179 by the end of the fourth day of the access period for the agreement, the employer must take all reasonable steps to ensure that the relevant employees:

(a) are given a copy of the document as soon as practicable after it was given to the employer; or

(b) are given access to a copy of the document as soon as practicable after it was given to the employer and have access to that copy throughout the remainder of the access period for the agreement.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(4B) If the employer is required to prepare a document under section 179A, the employer must take all reasonable steps to ensure that the relevant employees:

(a) are given a copy of the document by the end of the fourth day of the access period for the agreement; or

(b) are given access to a copy of the document by the end of that fourth day and have access to that copy throughout the remainder of the access period for the agreement.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(4C) The employer must not knowingly or recklessly make a false or misleading representation in the document that the relevant employees are given a copy of or access to under subsection (4B).

Note: This subsection is a civil remedy provision (see Part 4‑1).

Terms of the agreement must be explained to employees etc.

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

(c) employees who did not have a bargaining representative for the agreement.”

[4] As is clear from the above, the access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process. It appears to me that the Employer confused the access period with the voting period.

[5] I sought the views of the employees as to whether the way the vote was carried out affected their ability to genuinely agree to the Agreement, and whether they consider that they were disadvantaged by not having seven clear days’ notice of the vote.  

[6] On 11 May 2021, I received material from each of the three employees to my chambers. The employees each sought the assistance of the Independent Education Union (IEU) to prepare their communication to the Commission.

[7] The employees advised they were aware of the content of the Agreement and in their opinion were not disadvantaged in relation to the conduct of the ballot. I am therefore satisfied having regard to circumstances before me that the failure by the Employer to provide to each of the employees the seven clear days’ notice can be regarded as a minor procedural error and further, that the employees were not likely to have been disadvantaged as a result of it.

[8] The IEU, being a bargaining representative also filed submissions about whether it considers employees were disadvantaged by not having seven clear days’ notice of the vote. The submissions detailed that prior to employees being formally notified of the ballot, all employees were in agreement in principle with the proposal, and aware that a vote would need to occur.

[9] Having regard to the matters outlined above, I am satisfied the Agreement has been genuinely agreed.

[10] I have taken into consideration the material filed in the Commission and having regard to my conclusion at [7] – [9] 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 does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[11] The IEU 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 the IEU.

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 May 2021. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

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