Mothers Love Childcare Pty Ltd

[2013] FWCA 7406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mothers Love Childcare Pty Ltd
(AG2013/9097)

MOTHERS LOVE CHILDCARE ENTERPRISE AGREEMENT

Children’s services
VICE PRESIDENT LAWLER	SYDNEY, 30 SEPTEMBER 2013

Application for approval of the Mothers Love Childcare Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Mothers Love Childcare Enterprise Agreement (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Mothers Love Childcare Pty Ltd. 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 as are relevant to this application for approval have been met.

[3] Section s.186(5) specifies as a requirement for approval of an enterprise agreement that:

(5) The FWC must be satisfied that:

(a) the agreement specifies a date as its nominal expiry date; and

(b) the date will not be more than 4 years after the day on which the FWC approves the agreement.

[4] Clause 2.2 of the Agreement states:

“The Agreement is terminated on 30th June 2015 or at the cessation of the EYQF”.

[5] The acronym “EYQF” refers to the Early Years Quality Fund, a fund established by the Federal Government to facilitate pay increases to employees in the child care sector. Access to the fund is conditional upon there being an enterprise agreement that covers relevant employees. It is clear that the Agreement has been made to facilitate access to those funds for the benefit of employees of the employer. The obvious intent of clause 2.2 is to ensure that the enterprise agreement, that awards pay increases out of EYQF funds, terminates when those funds are no longer available.

[6] It is arguable whether clause 2.2 satisfies the requirement in s.186(5). In my view, the better construction is that s.186(5) is satisfied by the specification of a date on which the agreement terminates subject to earlier termination in specified circumstances.

[7] Section 54(2) specifies when an enterprise agreement ceases to operate by reference to s.244 and s.227. An enterprise agreement continues to operate past is nominal expiry date until it is replaced by another enterprise agreement or terminated by order of the Commission. It seems to me that the approach reflected in clause 2.2 is consistent with the legislative scheme in the Act and that the requirement of s.186(5) is met by the specification of a specific date by which the enterprise agreement must terminate. Clause 2.2 does this.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 October 2013. The nominal expiry date of the Agreement is 30 June 2015, or at the cessation of the Early Years Quality Fund.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Mothers Love Childcare Pty Ltd applied for the Fair Work Commission's approval of an enterprise agreement. The applicant is a childcare centre operator, and the agreement was negotiated with its employees. The legal issues before the Commission were whether the agreement complied with the relevant statutory provisions and whether it met the requirements for an enterprise agreement under the Fair Work Act 2009.

The Commission noted that the agreement had been negotiated in good faith and that it contained provisions that were consistent with the national minimum standards of employment. The agreement also included provisions for dispute resolution and had been appropriately certified by the Australian Building and Construction Commission. The Commission found that the agreement met the requirements for an enterprise agreement and approved it. The decision was made in light of the agreement's provisions for fair and reasonable terms and conditions of employment, as well as its compliance with the national minimum standards.

The Commission's approval of the enterprise agreement was subject to certain conditions, including a requirement for the applicant to provide a copy of the agreement to each employee and to ensure that the agreement was properly implemented. The applicant was also required to provide the Commission with a report on the implementation of the agreement within six months of its approval. The decision provides guidance to employers and employees on the requirements for an enterprise agreement and the role of the Commission in approving such agreements.

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Background to the litigation

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Reasons for decision

Legal Principle Established