Early Learning Association of Australia Inc T/A Early Learning Association of Australia

[2019] FWC 8162

[2019] FWC 8162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.251—Single interest employer authorisation

Early Learning Association of Australia Inc T/A Early Learning Association of Australia
(B2019/1225)

COMMISSIONER MCKINNON MELBOURNE, 2 DECEMBER 2019

Application for a variation of a single interest employer authorisation – no change in circumstances of employers – obvious error, defect or irregularity – correction 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 412 employers in relation to bargaining for an enterprise agreement to replace the Victorian Early Childhood Teachers and Educators Agreement 2016.

[2] On 22 October 2019, the Early Learning Association of Australia applied under section 251 to vary the Authorisation to remove the following six entities, and for the following reasons:

Entity	Reason
Bellevue Kindergarten Association Inc	Parent Advisory Group with no employees
Kallista Kindergarten Association Inc	Part of Try Australia Children’s Services already listed in Authorisation
Ringwood North Primary School	Does not operate pre-school program
St Alipius Parish Church	Part of Eureka Community Kindergarten Inc. already listed in Authorisation
Wimble Street Child Care Co-Operative Limited	Integrated service
Yarragon Primary School	Separate enterprise agreement applies

[3] Section 251 of the Act allows single interest employer authorisations to be varied to remove an employer – but only 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.

[4] As is apparent from the table above, the reason for the variation in each case is not that there has been a change in employer circumstances but that there was an error in compiling the list of employers to be covered by the Authorisation. None of the entities should have been on the list because they either were not employers, or will not be covered by the enterprise agreement or are already on the list under the umbrella of another entity. I am not persuaded that I can vary the Authorisation to remove any of the six entities under section 251.

[5] The error is one that is amenable to correction under section 602 because it is obvious that the six entities should not be, and should not have been, included on the list in relation to which the Authorisation was made.

[6] A correction order will issue separately and will operate from today.

COMMISSIONER

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 1   [2019] FWC 4917.