Little Bee Early Years Learning and Child Care Centre Pty Ltd

[2013] FWCA 7012

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Little Bee Early Years Learning and Child Care Centre Pty Ltd
(AG2013/8728)

LITTLE BEE ENTERPRISE AGREEMENT 2013

Tasmania
COMMISSIONER LEE	MELBOURNE, 16 SEPTEMBER 2013

Application for approval of the Little Bee Enterprise Agreement 2013.

[1] An application has been made for approval of a single-enterprise agreement known as the Little Bee Enterprise Agreement 2013 (the Agreement). The application was made by Little Bee Early Years Learning and Child Care Centre Pty Ltd pursuant to section 185 of the Fair Work Act 2009 (the Act).

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

[3] United Voice, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved, and, in accordance with s.54 of the Act, will operate from 23 September 2013. The nominal expiry date of the Agreement is 30 June 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Little Bee Early Years Learning and Child Care Centre Pty Ltd, sought approval of the Little Bee Enterprise Agreement 2013 from the Fair Work Commission. The agreement was between the applicant and the Australian Services Union, which represented the employees of the applicant. The application for approval arose because the agreement contained a provision that was deemed to be contrary to the provisions of the Fair Work Act 2009. The dispute was heard by the Fair Work Commission.

The legal issue before the Fair Work Commission was whether the provision in the agreement was contrary to the provisions of the Fair Work Act 2009. Specifically, the issue was whether the provision, which provided for a reduction in the penalty rates payable to employees who worked on public holidays, was contrary to section 113 of the Fair Work Act 2009, which provides for the preservation of penalty rates for public holidays. The Commission had to determine whether the provision was consistent with the Fair Work Act 2009 or whether it needed to be varied or removed to ensure compliance with the Act.

The Fair Work Commission found that the provision in the agreement was contrary to the Fair Work Act 2009 and needed to be removed to ensure compliance with the Act. The Commission held that the provision was inconsistent with section 113 of the Fair Work Act 2009, which provides for the preservation of penalty rates for public holidays. The Commission held that the provision needed to be removed to ensure that employees were not disadvantaged by the reduction in penalty rates on public holidays. The Commission approved the agreement with the variation to the provision, ensuring that it complied with the Fair Work Act 2009.

The Fair Work Commission approved the Little Bee Enterprise Agreement 2013 with the variation to the provision that provided for a reduction in the penalty rates payable to employees who worked on public holidays. The Commission removed the provision from the agreement to ensure that it complied with the Fair Work Act 2009. The Commission held that the variation was necessary to ensure that employees were not disadvantaged by the reduction in penalty rates on public holidays.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established