French-Australian Preschool Association Incorporated T/A French-Australian Preschool Association Inc

[2024] FWCA 2945

[2024] FWCA 2945

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

French-Australian Preschool Association Incorporated T/A French-Australian Preschool Association Inc

(AG2024/2107)

FRENCH-AUSTRALIAN PRESCHOOL ENTERPRISE AGREEMENT (MANAGEMENT) 2023

Children's services
COMMISSIONER PERICA	MELBOURNE, 12 AUGUST 2024

Application for variation of the French-Australian Preschool Enterprise Agreement (Management) 2023

1. On 12 June 2024, French-Australian Preschool Association Incorporated (FAPAI) made an application under s 210 to vary the French-Australian Preschool Enterprise Agreement (Management) 2023 (the Agreement). A vote to approve the variation was conducted on 29 May 2024. The variation to the Agreement is attached as Annexure A.

1. FAPAI seeks to vary the Agreement to increase the number of personal/carers leave for each year of service from 13 to 15 days and to amend the Schedule A, which sets out the pay rates. The pay rates in the Agreement, as currently expressed, were put into the Agreement in error. They are not the pay rates agreed by the executive committee of FAPAI at the time the Agreement was made.

1. The proposed variation to Schedule A reduce the rates of pay for workers employed by FAPAI by between $2,500 and $3,000 per year. Should this variation be approved, the reduced pay rates would still be between 39.43% to 66.26% above the rates prescribed within the Children’s Services Award 2010.

Voting Process for the variation

1. In the statement of concerns, I raised a concern about the method of voting for the variation. The vote took place at 9:00 AM on 29 May 2024. The method of voting was by way of a show of hands at a meeting through Microsoft Teams which was undertaken by a solicitor at Griffin Legal, a law firm retained by FAPAI.

1. On 4 August 2024, I held a hearing to take evidence in relation to the voting process. It was attended by Ms. Beth Cox, Special Counsel at Griffin Legal and Ms. Ash Gukhool, an employee of FAPAI and one of the voters. In the hearing, Ms. Gukhool stated at the time of the vote she had a clear idea of what she was voting for and why the variation was required. She also informed me that she had voted in a free and informed manner when she voted on the variation.

1. I am satisfied under s 211(1)(a) that I would have been required to approve the agreement as proposed to be varied under s 186. More particularly, the variation was genuinely agreed as required by s 186(2)(a).

1. The Enterprise Agreements Benchbook published by the Commission refers to a show of hands as a method of voting,[1] however, Principle 15 of the Statement of Principles on Genuine Agreement requires the voting process “ensures the vote of each employee is not disclosed to or ascertainable by the employer”. In the response to my statement of concerns, FAPAI stated, and I accept that, “the vote was conducted by a third party, Griffin Legal, who did not disclose the way each employee voted to the employer”.

1. I emphasise I do not in any way impugn the role of Griffin Legal in the conduct of the vote, however, a preferable method of voting would have been by a secret ballot which would not have been logistically difficult given the limited number of voters.

Conclusion

1. On the basis of the material contained in the application, the accompanying declaration from Mr. Andrew Farrell, a board member of FAPAI, and the matters put to me at the hearing on 4 August 2024, I am satisfied that each of the requirements under ss 211 and 212 as are relevant to this application have been met. I therefore approve the variation.

1. In accordance with s 216 of the Act, the variation operates from 12 August 2024.

COMMISSIONER

[1] At page 92 of 238.

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