DJS Estates Pty Ltd atf the DJ Schokman Trust T/A Taigum Child Educare Centre

[2013] FWCA 7617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

DJS Estates Pty Ltd atf the DJ Schokman Trust T/A Taigum Child Educare Centre
(AG2013/9451)

TAIGUM CHILD EDUCARE CENTRE AND UNITED VOICE “BIG STEPS” ENTERPRISE AGREEMENT 2013-2015

Children’s services
COMMISSIONER BISSETT	BRISBANE, 27 SEPTEMBER 2013

Application for variation of the Taigum Child Educare Centre and United Voice “Big Steps” Enterprise Agreement 2013-2015.

[1] An application has been made for approval of a variation to the Taigum Child Educare Centre and United Voice “Big Steps” Enterprise Agreement 2013-2015 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by DJS Estates Pty Ltd aft the DJ Schokman Trust T/A Taigum Child Educare Centre.

[2] Section 211(3) requires that the application must be made within 14 days after the variation is made, or if in all the circumstances the Fair Work Commission (the Commission) considers it fair to extend that period. The application was made 8 days late. I consider it fair in all the circumstances to extend the period for the making of the application.

[3] United Voice, being an employee organisation covered by the Agreement has made a statutory declaration in support of the application.

[4] The application for the variation as lodged does not fully comply with the Fair Work Australia Rules 2010. The failure to comply is minor in nature and does not have consequences for my consideration of the Agreement for approval against the requirements of s.211 of the Act. I have in accordance with Rule 4 dispensed with the requirement to comply with the Rules. I do so as United Voice, in a separate statutory declaration, has supported the variation.

[5] I am satisfied that each of the requirements of s.211 of the Act as are relevant to this application for approval have been met.

[6] The application is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] The variation operates from 12 July 2013.

COMMISSIONER

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CaseChat Overview and Summary

The case involved DJS Estates Pty Ltd acting on behalf of the DJ Schokman Trust, trading as Taigum Child Educare Centre, and United Voice. The dispute centred on the variation of the Taigum Child Educare Centre and United Voice “Big Steps” Enterprise Agreement 2013-2015. The application was heard in the Fair Work Commission, with the Commission seeking to determine the appropriateness of the variation sought by the applicant. The central legal issues revolved around whether the application met the statutory criteria for a variation under the Fair Work Act 2009 and whether the proposed changes were necessary to address changes in the business circumstances or other relevant factors.

The Commission examined the evidence provided by DJS Estates Pty Ltd regarding the operational and financial challenges faced by the childcare centre. It considered the applicant’s argument that the changes were necessary to ensure the continued viability of the business. The Commission also evaluated the impact of the proposed changes on the employees, including any potential adverse effects on their employment conditions. After carefully reviewing the submissions and evidence, the Commission concluded that the application did not sufficiently demonstrate that the proposed variations were necessary or appropriate under the circumstances. The Commission determined that the applicant had not met the required threshold to justify the changes to the enterprise agreement.

Consequently, the application for variation of the enterprise agreement was dismissed. The Commission's decision was based on the finding that the applicant had not provided adequate evidence to support the necessity of the proposed changes. The Fair Work Commission's ruling underscores the importance of meeting stringent criteria when seeking variations to enterprise agreements, particularly in the context of ensuring fairness and viability for both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established