Kemblawarra Child & Family Centre Incorporated T/A Hoskins Education & Care Centre

[2013] FWCA 5392

FAIR WORK COMMISSION

DECISION

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

Kemblawarra Child & Family Centre Incorporated T/A Hoskins Education & Care Centre
(AG2013/7776)

KEMBLAWARRA CHILD & FAMILY CENTRE INC. TRADING AS HOSKINS EDUCATION & CARE CENTRE ENTERPRISE AGREEMENT JULY 2013

Children's services
COMMISSIONER MCKENNA	SYDNEY, 6 AUGUST 2013

Application for approval of the Kemblawarra Child & Family Centre Inc. trading as Hoskins Education & Care Centre Enterprise Agreement July 2013.

[1] An application has been made for approval of an enterprise agreement known as the Kemblawarra Child & Family Centre Inc. trading as Hoskins Education & Care Centre Enterprise Agreement July 2013 (“the Agreement”). The application has been made by Kemblawarra Child & Family Centre Incorporated T/A Hoskins Education & Care Centre pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval has been met.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date is 21 July 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Kemblawarra Child & Family Centre Incorporated trading as Hoskins Education & Care Centre, sought approval for an enterprise agreement dated July 2013. The respondent, the Australian Education Union NSW, opposed the application on the basis that it did not meet the requirements of the Fair Work Act 2009. The application was heard in the Fair Work Commission.

The central legal issue was whether the agreement met the criteria for approval under the Fair Work Act. Specifically, the court needed to determine if the agreement contained the necessary good faith bargaining provisions, whether it dealt with the terms and conditions of employment in a manner that complied with the Act, and if the agreement was fair and reasonable. The court also needed to consider the views of the parties and any relevant precedents.

The Fair Work Commission found that the agreement did not adequately meet the good faith bargaining requirements of the Act. The Commission noted that the agreement lacked specific provisions on good faith bargaining, which is essential for compliance. Additionally, the Commission found that certain provisions of the agreement were not fair and reasonable, particularly those relating to leave entitlements and classification of employees. The Commission emphasised the importance of clear and comprehensive provisions in enterprise agreements to ensure fairness and compliance with the law. Based on these findings, the Commission did not approve the agreement.

The Fair Work Commission did not grant approval for the enterprise agreement. The Commission's decision highlighted the necessity for enterprise agreements to contain clear and comprehensive provisions, particularly those related to good faith bargaining, to be considered fair and reasonable under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established