Goodstart Early Learning Limited - [2012] FWA 2408

[2012] FWA 2408

FAIR WORK AUSTRALIA

REASONS FOR DECISION

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

Goodstart Early Learning Limited
(AG2012/3846)

GOODSTART EARLY LEARNING ENTERPRISE AGREEMENT 2012

Children’s services
COMMISSIONER HAMPTON	ADELAIDE, 10 APRIL 2012

Enterprise Agreement - whether apparent tension between agreement provision and NES would prevent approval - undertakings proposed only if required - whether the absence of annual leave loading on payments made upon termination contravenes the NES - s.90 considered - not presently convinced that provision in contravention of the NES - undertaking not required on annual leave provision - agreement approved.

BACKGROUND

[1] This matter concerns an application for approval of an enterprise agreement pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Goodstart Early Learning Limited (the employer) and the agreement is the Goodstart Early Learning Enterprise Agreement 2012.

[2] The agreement will apply to almost 16,000 employees engaged by the employer at its 656 child care centres around Australia. The nature of those activities is such that the Children’s Services Award 2010 and the Education Services (Teachers) Award 2010 cover their employment.

[3] United Voice, the Independent Education Union of Australia (the IEU) and the Australian Education Union (AEU) are employee bargaining representatives for the agreement. All have supported the approval application and are now covered by the agreement.

[4] A hearing to consider the application was conducted on 20 March 2012 and in the lead up to the hearing, the parties were advised that amongst other matters, two particular issues were to be considered. Firstly, the confirmation of wage rates that were to form part of the agreement and secondly, the annual leave arrangements. The wages issue was dealt with by way of an undertaking that will be briefly canvassed later in this decision.

[5] There were no other concerns arising from the raft of statutory approval requirements and save for the two identified issues, it was clear to me that the application should be granted. Without detracting from all of the other approval requirements I note in particular, that the employee approval process was particularly comprehensive and led to a genuine agreement. This took place in the context of multiple work sites, different transitional provisions involving some of those locations, and a very large number of employees. The process adopted by the employer and the unions is to be commended. The agreement also met the Better Off Overall Test prescribed by s.193 of the Act.

[6] The annual leave issue arose due to the fact that whilst an annual leave loading was provided by the agreement in relation to leave that was taken, clause 36.4 of the agreement did not provide for the payment of that loading on annual leave paid out on termination. The question raised by Fair Work Australia was whether this was consistent with the National Employment Standards (the NES) provided by s.90 of the Act and related provisions.

[7] This issue was flagged…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FWA 2408
Decision Date: 10 APRIL 2012

CaseChat Overview and Summary

In the Fair Work Commission, Goodstart Early Learning Limited sought approval for a new enterprise agreement. The primary dispute concerned whether certain provisions of the agreement, particularly those relating to termination payments, were consistent with the National Employment Standards (NES). The Commission was tasked with determining if the agreement was fair and whether it complied with the NES.

The key legal issue was whether there was an apparent tension between a specific provision of the agreement and the NES, which would necessitate the approval of undertakings. Specifically, the concern was whether the absence of annual leave loading on payments made upon termination contravened the NES. The Commission considered the statutory provision in section 90 and whether the agreement was in contravention of the NES.

After thorough examination, the Commission concluded that it was not presently convinced that the provision was in contravention of the NES. Therefore, it did not require the parties to provide undertakings. The Commission approved the agreement, noting that while there were some concerns, they did not rise to the level of requiring additional assurances under section 90.

The Fair Work Commission approved the enterprise agreement as presented, without the need for any undertakings, and with the understanding that further review may be necessary if the interpretation of the NES changes.

Orders