Early Learning Association Australia Inc

[2021] FWC 1643

[2021] FWC 1643

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.251 - Application for a variation of a single interest employer authorisation
s.602 - Application to correct obvious error(s) etc. in relation to FWC's decision

Early Learning Association Australia Inc
(B2021/121, ADM2021/1)

COMMISSIONER MCKINNON MELBOURNE, 25 MARCH 2021

Application for a variation of a single interest employer authorisation – Application to correct errors - changes in circumstances of employers – variation granted - obvious error, defect or irregularity – corrections made.

[1] On 16 July 2019, I issued a single interest employer authorisation 1 under section 249 of the Fair Work Act 2009. The Authorisation covers 407 employers in relation to bargaining for an enterprise agreement to replace the Victorian Early Childhood Teachers and Educators Agreement 2016.

[2] On 16 February 2021, the Early Learning Association of Australia applied to correct an obvious error in the Authorisation relating to the inclusion of 19 named employers. The application was later amended to cover 23 employers.

[3] On 25 February 2021, the Association made a further application under section 251 to vary the Authorisation to remove the same 23 entities from its scope.

[4] The applications are supported by the Australian Education Union.

[5] The reasons given by affected entities in support of the application are these:

No.	Entity	Reason
1	Heathmont Pre School & Kindergarten Incorporated	Change in provider; not eligible
2	Seymour Pre-School Centre Inc	Change in provider
3	Sebastopol Early Education Centre Incorporated	Ceased operations on 30 December 2020
4	St Scholastica’s Kindergarten Inc	Ceased operations on 19 December 2020
5	Regent Baptist Kindergarten Inc	Ceased operations on 26 January 2020
6	McLeans Road Kindergarten Inc	Change in provider (26 September 2020); already covered by the Authorisation under another name
7	Fairy Hills Kindergarten Association Inc.	Change in provider (28 August 2020); already covered by the Authorisation under another name
8	Mt Eliza Preschool Association Inc	Change in provider; already covered by the Authorisation under another name
9	Black Hill Primary School	Change in employer (26 September 2020); already covered by the Authorisation under another name
10	The Ballan & District Pre-School Centre Inc	Change in provider (17 August 2020)
11	North Hamilton Kindergarten Inc	Change in provider (1 January 2020); already covered by the Authorisation under another name
12	Mt Evelyn Memorial Pre-School Inc	Change in provider; already covered by the Authorisation under another name
13	Wandin Preschool Inc	Change in provider; already covered by the Authorisation under another name
14	Mooroolbark Early Childhood Education Centre Inc	Change in provider; already covered by the Authorisation under another name
15	St Mel's Kindergarten Inc	Change in provider; not eligible
16	St Therese's Catholic Church – Kennington	Change in provider (1 January 2021)
17	Wirilda Pre-School Association Inc	Ceased operations on 15 January 2021
18	Through Road Child Care Association Inc	Change in Committee of Management; change in position
19	KU Children's Services	Became covered by a different enterprise agreement in May 2019: did not meet relevant pre-approval steps
20	Airport West Child Care Centre Co-Operative Ltd	Obvious error: employee did not have authorisation from Committee of Management
16	St Therese's Catholic Church – Kennington	Change in provider (1 January 2021)
21	Werrimull P-12 School	Obvious error; signed by mistake; covered by another enterprise agreement
22	Clifton Child Care Co-Operative Limited	Obvious error; signed by mistake
23	Doveton College	Obvious error; signed by mistake; covered by another enterprise agreement; relevant pre-approval steps not met

[6] Section 251 of the Act allows single interest employer authorisations to be varied to remove an employer if the Commission is satisfied it is no longer appropriate that the employer be specified in the authorisation because of a change in the employer’s circumstances.

[7] It is appropriate to make the variations sought in relation to the entities listed from rows 1 to 19 in the table above, because in each case:

1. there has been a change in the circumstances of the employer,

2. the variations will give effect to the wishes of the parties concerned, and

3. the variations will pave the way for voting to begin on an enterprise agreement that, if made, will cover 383 employers and approximately 6320 employees.

[8] In the case of the entities listed in rows 20 – 23 above, there has not been a relevant change in employer circumstances and there is no power to remove them from the Authorisation under section 251.

[9] However, these entities should not have been included in the list in the first place. They were included because of mistakes made by individuals that joined them to a process they either did not understand or were not authorised to join. In the case of Clifton Child Care Co-Operative, the Committee of Management was (unintentionally) misled about what they were agreeing to. The errors are amenable to correction under section 602 because I am satisfied that obvious errors were made by the each of the affected entities.

[10] Orders will issue separately and will operate from today.

COMMISSIONER

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 1   [2019] FWC 4917.