Gawler Community Child Care Centre Incorporated T/A Gawler Community Child Care Centre

[2019] FWCA 1283

[2019] FWCA 1283

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Gawler Community Child Care Centre Incorporated T/A Gawler Community Child Care Centre
(AG2018/4735)

GAWLER COMMUNITY CHILD CARE CENTRE INC. ENTERPRISE AGREEMENT 2018

Children’s services
COMMISSIONER PLATT	ADELAIDE, 1 MARCH 2019

Application for approval of the Gawler Community Child Care Centre Inc. Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Gawler Community Child Care Centre Inc. Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Gawler Community Child Care Centre Incorporated T/A Gawler Community Child Care Centre. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 6 December 2018.

[3] On 13 December 2018, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] At the conclusion of the Conference the Applicant requested that it be allowed until 15 February 2019 to file their material as a number of employees were on leave over the Christmas break – a request which I granted.

[5] The Applicant filed their material on 14 February 2019. Upon review of the material, I noted a number of outstanding issues and listed the matter for further Conference on 26 February 2019 to discuss those issues with the Applicant.

[6] The Applicant then submitted an undertaking in the required form dated 26 February 2019. The undertaking deals with the following topics:

•  The operation of the Agreement is subject to National Employment Standards (NES).

•  Clause 4.7.7.4 of the Agreement shall be read as:

“continuity of service will be calculated in the manner prescribed by clause 7.1.3”.

•  At clause 5.4.3 of the Agreement, the Applicant withdraws the reference to “The Australian Retirement Fund”. This fund no longer operates and no employees are members of this fund.

•  Clause 7.4.4.2 of the Agreement will operate consistent with the NES.

•  In relation to clause 7.4.6.2 of the Agreement, full-time employees are entitled to 12 days of personal/carer’s leave.

•  Clause 7.8.2.4.2(c)(ii) shall be read as:

“for a reason referred to in subparagraph 7.8.2.5”

•  Clause 7.8.3.3 of the Agreement shall be read as:

“Transfer to Safe Job as per Section 81 of the Fair Work Act 2009 (Cth)”.

•  In relation to clause 7.8.3.9.4, the reference to clause “7.8.3.9.1(c)” is removed.

•  In relation to clause 7.8.3.9 of the Agreement, the employee is to notify the employer in writing of the flexibility request including the reason for the adjustment to working hours/conditions and the reasons behind the request.

•  For the purposes of clause 6.5.3, full-time employees (who work 8 hours a day and 40 hours per week) may elect to take 1 rostered day off per month in lieu of hours worked in excess of 7.6 hours.

•  Part-time and casual employees who work above 8 hours per day or 38 hours per week will be entitled to overtime.

•  Travel allowance for teachers will be as per Schedule 4 of the Agreement.

•  In relation to penalties, the Children’s Services Award 2010 (Children’s Services Award) is incorporated into this Agreement for those positions whose role would normally be covered by the Award.

•  Where an employee works past 6:30pm due to a non-attendance of a parent/guardian to collect a child, per clause 6.1.2 the employee will be deemed to have ceased their shift and will receive overtime or TOIL as per clause 6.5.

•  For each day on which a broken shift is worked, an employee will receive a broken shift allowance of 1.91% of Agreement Level 2.1, per day.

•  In relation to family and domestic violence leave, clause 28 the Children’s Services Award and clause 27 of the Educational Services (Teachers) Award 2010 (Educational Services Award) are incorporated into this Agreement.

•  In relation to rest breaks between shifts, all employees are entitled to a 10 hour rest period between each shift.

•  Where an employee would normally be covered by the Children’s Services Award commences shift without the required 10 hour break, clause 22.3 of that Award will apply.

•  Where an employee would normally be covered by the Educational Services Award commences shift without the required 10 hour break, Schedule B 1.4 of that Award will apply.

•  Clauses 14.3, 14.4, 14.5, 14.6, 14.7 and Schedule C of the Children’s Services Award are taken to be incorporated into the Agreement.

[7] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives supported the undertaking.

[8] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2021.

COMMISSIONER

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