Mawson Lakes Community Early Learning Incorporated T/A Mawson Lakes Community Early Learning
[2022] FWCA 1962
•16 JUNE 2022
| [2022] FWCA 1962 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Mawson Lakes Community Early Learning Incorporated T/A Mawson Lakes Community Early Learning
(AG2022/1573)
United Workers Union and Mawson Lakes Community Early Learning Collective Agreement 2021
| Children's services | |
| COMMISSIONER LEE | MELBOURNE, 16 JUNE 2022 |
Application for approval of the United Workers Union and Mawson Lakes Community Early Learning Collective Agreement 2021
An application has been made for approval of an enterprise agreement known as the United Workers Union and Mawson Lakes Community Early Learning Collective Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mawson Lakes Community Early Learning Incorporated T/A Mawson Lakes Community Early Learning. The Agreement is a single enterprise agreement.
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
The notice of employee representational rights (NERR) states that the Agreement is:
“…proposed to cover employees that Maintain current conditions, pay increase 10% over the three-year agreement, Back pay from 30th July 2021, 3 years agreement, Additional 3 days of Annual leave and two professional development (PD) days for all staff per year.”
However, clause 1.5 of the Agreement states that
“This Agreement applies to all Employees engaged by the Employer to perform duties that are contemplated by the classifications set out in Schedule 1.”
As such, the NERR does not contain the content prescribed by the Fair Work Regulations 2009 in accordance with s.174(1A) of the Act. The UWU made the following submissions on behalf of the employer in relation to this issue:
“The Applicant and the UWU make the following joint submission in regard to the NERR.
We submit that the failure to properly identify the Employees covered by the proposed Agreement in the NERR constitutes a minor technical error for the purposes of s. 188(2) of the Fair Work Act 2009 (the FW Act) which did not disadvantage the employees or affect their ability to genuinely agree to the Agreement.
We submit that Employees were made aware of their representational rights and the proposed coverage of the Agreement for the following reasons:
1. The Employees were already covered by an enterprise agreement and understood that the new Agreement would replace the old one, with no changes in the employees it covered. The predecessor agreement and the proposed Agreement covered all Employees employed by Mawson Lakes Community Early Learning Incorporated. This was communicated to all employees via the staff meeting referred to in paragraph 2.0 below.
2. The NERR contained the name of the proposed Agreement and the initial claims that employees sought to propose to the Applicant. These claims had been determined in the following way:
·In a staff meeting on or around 23 June 2021 Ms Kerry Amuso, the workplace's United Workers' Union delegate discussed with all employees that they would soon begin to bargain for a new enterprise agreement due to how old the predecessor agreement was. Ms Amuso sought the views of all employees and with the assistance of Ms Chen, the Director, sent an email to every staff member with a link to a survey for employees to express what they wanted to bargain for in the new enterprise agreement. Around 90% of employees responded to the survey.
·Ms Amuso then went around the following week with a list of every employee of the Applicant. She personally spoke with each and every employee to understand what they wanted to bargain for, and what they would like to prioritise. From this process Ms Amuso was able to determine that the employees' preference was to prioritise a 10% pay rise over the life of the proposed Agreement. This process also made clear to the Employees that they were covered by the proposed Agreement.
·The NERR contained the initial claims which were produced via consultation with every Employee. The Employees would have recognised their claims in the NERR, and understood that the Agreement proposed to cover them.
3. Through these processes Ms Amuso made it clear to each and every employee of the Applicant that they would be covered by the proposed Agreement and they could have a say in the content of the Agreement.
4. Despite the defect in the NERR, the NERR still communicated clearly to the employees that they were entitled to be represented in the bargaining process by the UWU or by any other bargaining representative that they elected. The Employees were represented in the bargaining process by the UWU.
For the above reasons we submit that the defect in the NERR did not disadvantage any employee of the Applicant, and through the efforts of Ms Amuso in particular all employees were explicitly informed that they were covered by the Agreement and were entitled to representation. On this basis we submit that the Agreement was genuinely agreed to pursuant to s. 188(2) of the FW Act. If the Commissioner requires, Ms Amuso is able to detail her efforts in a statement.”
I have considered the above submissions, and I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1] that the above matter relating to the NERR constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.
The United Workers’ Union 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) I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 June 2022. The nominal expiry date of the Agreement is 1 July 2024.
COMMISSIONER
Annexure A
[1] [2019] FWCFB 318.
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