Eltham Woods Childcare Cooperative

[2013] FWC 8031

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Application for approval of a single-enterprise agreement

Eltham Woods Childcare Cooperative
(AG2013/2634)

DEPUTY PRESIDENT SMITH

MELBOURNE, 15 OCTOBER 2013

Application for approval of the Eltham Woods Childcare Cooperative Enterprise Agreement 2013—application dismissed.

[1] On 29 August 2013 employees to be covered by the abovementioned agreement approved the agreement and the Eltham Woods Childcare Cooperative lodged an application for approval of the Eltham Woods Childcare Cooperative Enterprise Agreement 2013 (the Agreement) on the same day. The notice of representational rights was issued to employees on 5 August 2013.

[2] On 10 September 2013 I wrote to the applicant outlining my concerns that applicant’s notice of representational rights did not comply with s.174 of the Fair Work Act 2009 (the Act).

[3] The content and form of notice of employee representational rights is derived by s.174(1A) of the Act. This section provides:

“The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

[4] Further, s.174(3) requires that the content of a notice to advise employees of a default bargaining representation position be as follows:

“If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.”

[5] Regulation 2.05 of the Fair Work Regulations 2009 provides that:

“For subsection 174(6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.”

[6] The Act does not permit an alteration to the notice provided in Schedule 2.1 (except as provided for in Schedule 2.1).

[7] The notice of employee representational rights issued by Eltham Woods Childcare Cooperative to employees in this matter did not conform with Schedule 2.1.

[8] In Otswald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union 1 a Full Bench held that:

“properly construed, in the broader context of the Act, s.188(1)(b) of the Act requires the giving of notice of employee representational rights 21 days prior to a request to approve an enterprise agreement under s.181 in the terms required by s.174 of the Act, which includes advice of default representation in s.174(3). The notice given in this case, which omitted the information to employees required by s.174(3) was not a notice as required by s.188(1)(b).”

[9] The Commission must be satisfied that the employees were not asked to approve an enterprise agreement until 21 days after the last notice of representational rights is given. 2

[10] In the present circumstances, it is clear that the notice of representational rights provided to employees was not a notice of representational rights as required by the Act.

[11] As no notice of the prescribed kind was provided to employees, Eltham Woods Childcare Cooperative did not comply with s.181(2) and therefore the application for approval of the agreement cannot be granted. The application is therefore dismissed.

DEPUTY PRESIDENT

1 [2012] FWAFB 9512 at paragraph 88.

2 ss.188(a)(ii) and 181(2).

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Eltham Woods Childcare Cooperative sought approval of their proposed 2013 Enterprise Agreement. The Cooperative, a not-for-profit entity, operates several childcare centres and was formed to provide quality childcare services to the community. The dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. The Commission was required to determine if the agreement complied with the procedural and substantive fairness requirements.

The primary legal issue was whether the agreement was genuinely bargained between the parties, as mandated by the Act. The Cooperative argued that the agreement was the product of good faith negotiations. The Commission needed to consider whether there was sufficient evidence of genuine negotiation and whether the terms of the agreement were fair and reasonable. Additionally, the Commission had to assess if the agreement met the 'better off overall test', ensuring that employees were not worse off under the new agreement compared to their previous conditions.

The Commission concluded that the agreement did not meet the statutory requirements. While the Cooperative claimed to have engaged in good faith negotiations, the evidence presented did not sufficiently demonstrate genuine bargaining. The Commission found that several terms of the agreement were not fair and reasonable, particularly in relation to penalty rates and leave provisions. Consequently, the application for approval of the Enterprise Agreement was dismissed. The Commission did not make any orders, as the agreement was not approved and therefore did not come into effect.

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