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

Printed by authority of the Commonwealth Government Printer

1 [2019] FWC 4917.

CaseChat Overview and Summary

The applicants, the Early Learning Association of Australia Inc, trading as the Early Learning Association of Australia, sought a variation of their single interest employer authorisation. The application was made to the Fair Work Commission, which was the relevant tribunal to consider the matter. The association's authorisation was initially granted for a specific purpose, but they sought to amend it due to what they described as an obvious error, defect, or irregularity in the original authorisation.

The primary legal issue before the tribunal was whether the application for variation was justified based on an obvious error, defect, or irregularity in the original authorisation, despite no change in the circumstances of the employers. The association argued that the error was apparent and needed correction to ensure the authorisation accurately reflected the intended scope of their activities. The tribunal had to determine whether the association's application met the criteria for a variation under the applicable legislation.

The tribunal examined the application and found that the error in the authorisation was indeed obvious and warranted correction. The tribunal acknowledged that there had been no change in the circumstances of the employers, but the presence of an obvious error justified the variation. The tribunal concluded that allowing the variation was necessary to correct the defect and ensure the authorisation accurately represented the association's activities. As a result, the tribunal granted the application for variation.

The tribunal's decision resulted in the variation of the Early Learning Association of Australia Inc's single interest employer authorisation to correct the identified error. The tribunal's order specified the corrected terms of the authorisation, aligning it with the association's intended scope of activities. This outcome ensured that the authorisation accurately reflected the association's operations and complied with the relevant legislative requirements.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established