Early Learning Association of Australia Inc (ADM2019/7)

[2019] FWC 6042

[2019] FWC 6042

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.602 - Application to correct obvious error(s) etc. in relation to FWC’s decision

Early Learning Association of Australia Inc
(ADM2019/7)

Children’s services
COMMISSIONER MCKINNON	MELBOURNE, 29 AUGUST 2019

Application to correct obvious error(s) etc. in relation to FWC’s decision.

[1] Application has been made under s.602 of the Fair Work Act 2009 (the Act) for correction of an obvious error, defect or irregularity in relation to my Decision 1 to issue a single interest employer authorisation2 (the Authorisation) in relation to a proposed enterprise agreement to replace the Victorian Early Childhood Teachers and Educators Agreement 2016 on 16 July 2019.

[2] The application was made by the Early Learning Association of Australia Inc (the Applicant) on behalf of the 412 employers named at Appendix A to the Authorisation.

[3] The Australian Education Union (AEU) and United Voice (UV) each support the application.

Relevant Legislation

[4] Section 602 of the Act provides:

“602 Correcting obvious errors etc. in relation to the FWC’s decisions

(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).

Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.

(2) The FWC may correct or amend the error, defect or irregularity:

(a) on its own initiative; or

(b) on application.”

The Authorisation

[5] The obvious error, defect or irregularity is said to arise in relation to the description of employees who will be covered by the proposed enterprise agreement at paragraph [3] of the Authorisation.

[6] Paragraph [3] of the Authorisation specifies the employees who will be covered by the agreement as follows:

“1. Employees employed in government funded kindergarten programs by the committees of management of the Employers; and

2. employees employed by the Employers in integrated childcare centres.”

[7] It is apparent that this description is a departure from the current enterprise agreement, which is expressed to cover employees of specified employers “as defined in” the agreement. Relevant employee classification definitions are contained in Part A and include Activity Group Leader, Advisor, Advisor in Charge, Diploma Qualified Early Childhood Educator, Early Childhood Educator, Early Childhood Teacher, Educator and Preschool Field Officers.

Submissions

[8] The Applicant submits that in its current form, the Authorisation specifies a substantially wider group of employees than the parties intended would be covered by the proposed enterprise agreement. Employees who do not perform teaching or educative work would be within its scope, including cooks, cleaners and gardeners. This might adversely affect bargaining for the replacement Agreement, including because other employee organisations with a relevant interest may have been excluded from discussions in relation to the Authorisation and because scope orders are not available as a remedy in relation to the proposed agreement in circumstances where the Authorisation is operation.

[9] The Applicant submits that the wording used in the Authorisation is inconsistent with historical iterations of the enterprise agreement that is sought to be replaced, which have never covered employees other than those directly involved in the delivery of kindergarten and childcare programs.

[10] Consistent with the current enterprise agreement, the Applicant seeks that the Authorisation be corrected so that it specifies the employees who will be covered by the agreement as:

“(a) early childhood teachers who are employed to plan and deliver kindergarten programs;

(b) early childhood educators and activity group leaders who are employed to plan and/or deliver kindergarten programs; and

(c) early childhood advisors, early childhood advisors in charge and pre-school field officers who are employed to support the delivery of kindergarten programs.”

[11] The Applicant concedes that the issue arises from imprecise drafting in the Applicant’s originating application for a Ministerial Declaration and the related Authorisation. It nevertheless submits that failure to correct the error, defect or irregularity will have a significant impact on the industry.

[12] The AEU and UV support the application to vary the employee group as set out in paragraph [10] above.

Disposition

[13] After hearing from the Applicant, the AEU and UV and having regard to the materials before me, including the substantial history to this application and the legislative framework, I am satisfied that there is an obvious error in the Authorisation that should be corrected in the interests of certainty and to give effect to the intentions of the parties.

[14] An order is issued separately to this Decision.

COMMISSIONER

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 1   [2019] FWCA 4917 (16 July 2019)

 2   PR710342