Nabih Merhi, Elssy Merhi & Jennifer Sutherland T/A Eco Kids Child Care Centre Summary

[2013] FWCA 5945

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nabih Merhi, Elssy Merhi & Jennifer Sutherland T/A Eco Kids Child Care Centre
(AG2013/7908)

ECO KIDS CHILD CARE CENTRE AND ITS EMPLOYEES ENTERPRISE AGREEMENT 2013-2015

Children’s services
COMMISSIONER BISSETT	MELBOURNE, 20 AUGUST 2013

Application for approval of the Eco Kids Child Care Centre and its Employees Enterprise Agreement 2013 - 2015.

[1] An application has been made for approval of an enterprise agreement known as the Eco Kids Child Care Centre and its Employees Enterprise Agreement 2013 - 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). 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] The Agreement is approved. In accordance with s.54(1) it will operate from 27 August 2013. The nominal expiry date of the Agreement is 30 June 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involves an application by the Fair Work Commission for the approval of the Eco Kids Child Care Centre and its Employees Enterprise Agreement 2013 - 2015. The applicants, Nabih Merhi, Elssy Merhi, and Jennifer Sutherland trading as Eco Kids Child Care Centre, were seeking to have the enterprise agreement approved by the Commission. The respondents were the applicant employers and the Australian Early Childhood Educators and Carers, a trade union representing the employees. The nature of the dispute was the approval of a specific enterprise agreement governing the employment terms and conditions of the employees at the child care centre for a three-year period. The matter was heard by the Fair Work Commission, an Australian federal statutory tribunal with jurisdiction over workplace relations matters.

The legal issues that the Commission was required to decide related to whether the enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement was fairly negotiated, contained certain "protected action" provisions, and met the "better off overall test." The Commission also had to determine whether the agreement was made in good faith and whether it was in the best interests of the employees. Furthermore, the Commission had to consider the impact of the agreement on the employees' rights, including their right to freedom of association, and whether the agreement provided for a fair and reasonable outcome for both the employers and employees.

After carefully reviewing the evidence and submissions from both parties, the Fair Work Commission found that the Eco Kids Child Care Centre and its Employees Enterprise Agreement 2013 - 2015 met the legal requirements for approval. The Commission concluded that the agreement was fairly negotiated, contained the necessary "protected action" provisions, and passed the "better off overall test." The Commission also determined that the agreement was made in good faith and was in the best interests of the employees. Moreover, the Commission found that the agreement did not infringe on the employees' right to freedom of association and provided a fair and reasonable outcome for both parties. Consequently, the Fair Work Commission approved the enterprise agreement, and it came into effect from the date of the decision.

The final orders of the Commission included the approval of the Eco Kids Child Care Centre and its Employees Enterprise Agreement 2013 - 2015, which was to be registered with the Fair Work Commission. The agreement was to govern the employment terms and conditions of the employees at the child care centre for a three-year period, from 1 July 2013 to 30 June 2016. The Commission also ordered that the agreement be published on its website and provided to the parties. Additionally, the Commission directed that any disputes arising under the agreement would be resolved in accordance with the relevant provisions of the Fair Work Act 2009.

Nabih Merhi, Elssy Merhi & Jennifer Sutherland T/A Eco Kids Child Care Centre

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established