Gymea Nursery School and Kindergarten Co-Operative Society Limited T/A Gymea Community Preschool

[2017] FWCA 1926

[2017] FWCA 1926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Gymea Nursery School and Kindergarten Co-Operative Society Limited T/A Gymea Community Preschool
(AG2017/28)

GYMEA NURSERY SCHOOL AND KINDERGARTEN CO-OP SOCIETY LIMITED CHILD CARE EDUCATOR ENTERPRISE AGREEMENT 2015

Educational services
COMMISSIONER JOHNS	SYDNEY, 5 APRIL 2017

Application for variation of the Gymea Nursery School and Kindergarten Co-op Society Limited Child Care Educator Enterprise Agreement 2015.

[1] On 21 December 2016 an application was made by Gymea Nursery School and Kindergarten Co-Operative Society Limited T/A Gymea Community Preschool (Gymea or Applicant) for approval of a variation to the Gymea Nursery School and Kindergarten Co-op Society Limited Child Care Educator Enterprise Agreement 2015 (Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (Act).

[2] The application was made within the prescribed 14 day limit.

[3] The application was accompanied by an Employer’s Statutory Declaration (Form F23A) as well as a statutory declaration from an Employee organisation (Form F23B), namely United Voice.

[4] The application seeks approval of the variation of the Agreement, by amending:

a) Clause 2: by inserting “Schedule D – National Training Wage” at page “43”,

b) Clause 31(b): be replaced with “The employees of the employer in the classifications described in Clause 8 and trainees employed under Schedule D of this Agreement.”

c) Clause 7: by adding “‘Trainee’ means an employee who is undertaking a traineeship and is paid in accordance with the terms set out in Schedule D – National Training Wage. Except as provided in Schedule D, all other terms and conditions contained in the Agreement will apply to trainees.”, and

d) Schedule D: inserting full text of National Training Wage Schedule from the Children’s Services Award 2010.

[5] “S.211 When the FWC must approve a variation of an enterprise agreement

Approval of variation by the FWC

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

(a) the FWC is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and
(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;
unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.

Note: The FWC may approve a variation under this section with undertakings (see section 212).

Modification of approval requirements

(2) For the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), the FWC must:

(a) take into account subsections (3) and (4) and any regulations made for the purposes of subsection (6); and
(b) comply with subsection (5); and
(c) disregard sections 190 and 191 (which deal with the approval of enterprise agreements with undertakings).

(3) The following provisions:

(a) section 180 (which deals with pre-approval steps);
(b) subsection 186(2) (which deals with the FWC’s approval of enterprise agreements);
(c) section 188 (which deals with genuine agreement);
have effect as if:
(d) references in sections 180 and 188 to the proposed enterprise agreement, or the enterprise agreement, were references to the proposed variation, or the variation, of the enterprise agreement (as the case may be); and
(e) references in those provisions to the employees employed at the time who will be covered by the proposed enterprise agreement, or the employees covered by the enterprise agreement, were references to the affected employees for the variation; and
(f) references in section 180 to subsection 181(1) were references to subsection 208(1); and
(g) the words “if the agreement is not a greenfields
agreement—” in paragraph 186(2)(a) were omitted; and
(h) paragraph 186(2)(b) were omitted; and
(ha) references in paragraphs 186(2)(c) and (d) to the agreement were references to the enterprise agreement as proposed to be varied; and
(hb) subparagraph 188(a)(ii) were omitted; and
(j) the words “182(1) or (2)” in paragraph 188(b) were omitted and the words “209(1) or (2)” were substituted.

(4) Section 193 (which deals with passing the better off overall test) has effect as if:

(a) the words “that is not a greenfields agreement” in subsection (1) were omitted; and
(b) subsection (3) were omitted; and
(c) the words “the agreement” in subsection (6) were omitted and the words “the variation of the enterprise agreement” were substituted; and
(d) the reference in subsection (6) to subsection 182(4) or section 185 were a reference to section 210.

(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.

Regulations may prescribe additional modifications

(6) The regulations may provide that, for the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), specified provisions of this Part have effect with such modifications as are prescribed by the regulations.”

[6] On 6 January 2017 the Commission directed any employee or organisation which opposed the variation of the Agreement to file their submissions by 13 January 2017, and directed the respondent to email a copy of the directions to its employees by 10 January 2017 (Directions).

[7] On 10 January 2017 Ms Patricia Brown, Director, filed a statutory declaration, declaring that the Directions were emailed to all employees of the applicant.

[8] No submissions were received in opposition to the application.

[9] The Commission is satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met.

[10] The application is approved. Copies of the variations are at Attachment A and the consolidated copy of the Agreement, as varied, is attached to this decision. In accordance with s.216 of the Act, the variation will operate on and from 5 April 2017.

COMMISSIONER

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ATTACHMENT A