Municipal Association of Victoria

[2021] FWCA 2193

[2021] FWCA 2193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Municipal Association of Victoria
(AG2021/4263)

EARLY EDUCATION EMPLOYEES AGREEMENT 2020

Educational services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 21 APRIL 2021

Application for approval of the Early Education Employees Agreement 2020.

[1] Municipal Association of Victoria, in its role as employer bargaining representative, has applied for approval of a multi-enterprise agreement known as the Early Education Employees Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

[2] Since the application was made, the Commission raised concerns about the form of the application and whether the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] A single declaration was filed along with the relevant information in relation to each of the 22 employers and the employees covered by the Agreement. I consider it appropriate in all the circumstances to waive the requirement for each of the 22 employers to file separate declarations as required by Rule 24 of the Fair Work Commission Rules 2013 (Cth) and do so pursuant to Rule 6.

[4] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b).

[5] Two of the Notices of Employee Representational Rights (Notices) issued at the commencement of bargaining were not strictly compliant with the requirements of s.174 because the Notices included content other than the prescribed form (employer letter heads and logos). The Notices were otherwise compliant in all respects. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[6] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[7] Noting clause 8.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[8] On the basis of the material contained in the application and the further information provided on request of the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[9] The Australian Education Union and the United Workers’ Union, being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers these organisations.

[10] The Agreement was approved on 21 April 2021 and, in accordance with s.54, will operate from 28 April 2021. The nominal expiry date of the Agreement is 30 September 2024.

DEPUTY PRESIDENT

 1   [2019] FWCFB 318.

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