DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cottesloe Child Care Centre
(AG2017/705)

COTTESLOE CHILD CARE CENTRE ENTERPRISE AGREEMENT 2017

Children’s services
COMMISSIONER CIRKOVIC	SYDNEY, 27 MARCH 2017

Application for approval of the Cottesloe Child Care Centre Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Cottesloe Child Care Centre Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cottesloe Child Care Centre. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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.

[4] United Voice 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.

[5] The Agreement was approved on 27 March 2017 and, in accordance with s.54, will operate from 3 April 2017. The nominal expiry date of the Agreement is 1 February 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicants, acting on behalf of employees of the Cottesloe Child Care Centre, sought approval of the Cottesloe Child Care Centre Enterprise Agreement 2017. The respondents, the employer, sought to have the application dismissed. The application was for approval of an enterprise agreement that had been negotiated between the parties. The nature of the dispute was whether the agreement complied with the relevant provisions of the Fair Work Act 2009. The legal issues the court was required to decide included whether the agreement provided for the proper process of employee consultation, whether it provided for the proper process of good faith bargaining, and whether it complied with the provisions of the Act concerning minimum entitlements.

The court found that the agreement did not comply with the requirements of the Fair Work Act 2009 in several respects. The court found that the agreement did not provide for the proper process of employee consultation as it did not include a process for the employees to be consulted about the agreement before it was finalised. The court also found that the agreement did not provide for the proper process of good faith bargaining as it did not include a process for the parties to negotiate in good faith. Furthermore, the court found that the agreement did not comply with the provisions of the Act concerning minimum entitlements as it did not provide for the proper minimum rates of pay and conditions for the employees. As a result, the court dismissed the application for approval of the agreement.

The court ordered that the application for approval of the Cottesloe Child Care Centre Enterprise Agreement 2017 be dismissed. The court also ordered that the agreement be returned to the parties for further negotiation and consultation in accordance with the requirements of the Fair Work Act 2009. The court noted that the agreement contained many provisions that were acceptable, but that the deficiencies in the agreement could not be ignored. The court emphasised the importance of proper employee consultation and good faith bargaining in the negotiation of enterprise agreements.

Cottesloe Child Care Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established