Jannali Preschool Kindergarten Inc T/A Jannali Preschool Kindergarten Inc

[2017] FWCA 520

[2017] FWCA 520

FAIR WORK COMMISSION

DECISION

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

Jannali Preschool Kindergarten Inc T/A Jannali Preschool Kindergarten Inc
(AG2017/20)

JANNALI PRE-SCHOOL KINDERGARTEN INC AGREEMENT 2012

Children's services
COMMISSIONER JOHNS	SYDNEY, 5 APRIL 2017

Application for variation of the Jannali Pre-School Enterprise Agreement 2012.

[1] On 22 December 2016 an application was made in the Fair Work Commission (Commission) by Jannali Preschool Kindergarten Inc T/A Jannali Preschool Kindergarten Inc (Jannali/applicant) for approval of a variation to the Jannali Pre-School Enterprise Agreement 2012 (Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (Act).

[2] The application was made outside of the 14 day limit, namely nine days after the variation was made on 29 November 2016. The Act allows the Commission to extend that period if it considers it fair to do so in all the circumstances.

[3] Mr Kouhei Steele, Primary School Teacher filed an Employer’s Statutory Declaration (Form F23A). Mr Steele explained the reason the application was submitted more than 14 days from the date of the variation was that:

● the applicant conducted a final staff meeting on 14 December 2016 to hear any final queries or concerns from the employees; and

● the applicant is a not-for-profit preschool run by a volunteer committee of parents, none of which have any experience in industrial relations and were unaware that an application must be made within 14 days of the variation.

[4] The Commission, as presently constituted, is satisfied that pursuant to s.210(3)(b), in all the circumstances it is fair to extend the period for lodgement of this application to 22 December 2016.

[5] The application seeks approval of the variation of the Agreement, namely:

a) amending clause 20.6 so that it reads “The ordinary hours of work for Contact Employees during term weeks are variable. In return Contact Employees are not generally required to attend for periods of time when children are not present (non-term time) subject to the needs of the Employer with regard to professional development, first-aid training, student free days and other activities requiring Contact Employees attendance.”;
b) the removal of clause 20.7 relating to the limit on days in the year that staff are required to attend the workplace; and

c) the correction of a typographical error in clause 34.3, specifically inserting a “b” into the formula. The formula will then read “P= s x c – b/d”.

[6] “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.”

[7] 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).

[8] On 10 January 2017 Mr Steele filed a statutory declaration, declaring that the Directions were emailed to all employees of the applicant.

[9] On 12 January 2017 Ms Lisa Rowan from the applicant informed the Commission that a number of staff were on annual leave until 20 January 2017, and requested that the directions were amended to allow any employee or organisation to file their opposition to the application by 27 January 2017.

[10] On 12 January 2017 the Commission extended the dates in the Directions, instructing any employee or organisation which opposed the variation of the Agreement to file their submissions by 27 January 2017, and directed the respondent to inform all employees of the applicant of the adjusted dates by 17 January 2017.

[11] On 15 January 2017 Mr Steele filed a statutory declaration, declaring that all employees were made aware of the extension of time to file any opposition to the application.

[12] On 26 January 2017 Ms Rowan emailed the Commission advising that she opposes the variations proposed in the application. She submitted that the change to clause 20 would allow for a broad range of interpretation which could place staff at a disadvantage. Ms Rowan also requested further clarification on what the implications would be if the variation to clause 34.3 was to take effect.

[13] On 30 January 2017 the applicant was directed to provide a copy of all information provided to the employees regarding the variation of the Agreement by 1 February 2017. The applicant provided these documents by 1 February 2017.

[14] On 6 February 2017 the applicant was directed to provide:

a) before and after versions of the relevant sections in clause 20 that the applicant proposed to vary; and

b) an explanation of how the inclusion of the “b” into the formula in clause 34.3:

i. does not result in a more beneficial outcome for employees;

ii. does not result in a less beneficial outcome for employees; and

iii. was explained to the employees.

[15] On 15 February 2017 the applicant provided before and after versions of clauses 20.6 and 20.7, and an explanation regarding the proposed variation to the formula in clause 34.3. The applicant noted that the formula (in the form of the proposed variation) is identical to that which is in the Children’s Services Award 2010.

[16] On 19 February 2017 Ms Rowan wrote to the Commission and advised she no longer opposes the variations sought in clause 34.3 and clause 20.7. However maintained her objection to the variation of clause 20.6, as she submitted, the variation would make the meaning of the clause open to interpretation. Further, she submitted it would mean that employees would have to be available to the employer everyday as well as during stand down and school holidays, impeding their ability to dedicate time to other commitments.

[17] On 21 February 2017 the Commission directed the applicant to either provide submissions in reply to the points raised by Ms Rowan, or undertake to withdraw its proposed variation to clause 20.6.

[18] On 16 March 2017 Ms Rowan notified the Commission that she had reached an individual agreement with the applicant and withdrew her remaining objection to the variation of clause 20.6

[19] 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.

[20] 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