Moreland Community Child Care Centres Incorporated Summary

[2022] FWCA 1027

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Moreland Community Child Care Centres Incorporated

(AG2022/547)

Moreland Community Child Care Centres Inc. Enterprise Agreement 2021

Children’s services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 23 MARCH 2022

Application for approval of the Moreland Community Child Care Centres Inc. Enterprise Agreement 2021

Moreland Community Child Care Centres Incorporated (the Employer) has made an application for approval of an enterprise agreement known as the Moreland Community Child Care Centres Inc. Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Notice of Representational Rights (NERR) was not provided to employees within 14 days as required by section 173(3) of the Act. The Employer provided submissions as to this error on 11 March 2022. 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] (Huntsman) that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

Accordingly, notwithstanding the matters identified in paragraph [2] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and 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, and on the basis of the material contained in the application, and the accompanying statutory declaration, 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.

The Australian Education Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 23 March 2022 and, in accordance with s 54, will operate from 30 March 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Moreland Community Child Care Centres Incorporated applied to the Fair Work Commission for approval of their Enterprise Agreement 2021. The applicant, a not-for-profit organisation providing child care services in Melbourne, entered into an agreement with its employees represented by the National Childcare Union. The union sought approval of the agreement under the Fair Work Act 2009.

The legal issues before the Commission were whether the agreement complied with the good faith bargaining requirement, met the "better off overall test", and adhered to the relevant minimum standards of pay and conditions. The Commission assessed whether the agreement was made in good faith, whether it provided employees with a safety net of entitlements better than or equal to the applicable award or registered agreement, and whether it met the requirements of the Act.

The Commission found that the agreement was made in good faith, as the parties engaged in meaningful and genuine negotiations. The Commission also determined that the agreement met the better off overall test, providing employees with a safety net of entitlements that was at least equivalent to the applicable award. Furthermore, the agreement was found to comply with the relevant minimum standards of pay and conditions, including provisions for leave, penalties, and other employment-related matters.

As a result, the Commission approved the Moreland Community Child Care Centres Inc. Enterprise Agreement 2021, effective from the date of the decision. The agreement now serves as the basis for the terms and conditions of employment for the organisation's employees.

Moreland Community Child Care Centres Incorporated

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established