Noarlunga Community Children’s Centre Incorporated Summary

[2022] FWCA 1873

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Noarlunga Community Children’s Centre Incorporated

(AG2022/1636)

United Workers Union - Noarlunga Community Children’s Centre Inc Collective Agreement 2022

Educational services
COMMISSIONER PLATT	ADELAIDE, 9 JUNE 2022

Application for approval of the United Workers Union - Noarlunga Community Children’s Centre Inc Collective Agreement 2022

An application has been made for approval of an enterprise agreement known as the United Workers Union - Noarlunga Community Children’s Centre Inc Collective Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Noarlunga Community Children’s Centre Incorporated (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 2 June 2022.

On 7 June 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

The Applicant has submitted an undertaking in the required form dated 9 June 2022. The undertaking deals with the following topics:

· The Children’s Services Award 2010 (Children’s Award) and the Educational Services (Teachers) Award 2020 (the Teachers Award) are incorporated into the Agreement.

· Clause 7.1.6.2 of the Agreement, which deals with deductions, has been amended such that it is consistent with clause 24.8(d) of the Children’s Award.

· Casual employees who have worked a regular pattern of hours on an ongoing basis for six months will be entitled to casual conversion.

· Employees will be entitled to compassionate leave in circumstances in which the employee, their spouse or de facto partner has a miscarriage or gives birth to a stillborn child.

· Employees will be entitled to 12 paid personal leave days per year, inclusive of carer’s leave.

· Employees covered by the Agreement will not be employed on an annualised salary.

· The company will not rely on clause 6.3 of the Agreement.

· Casual teachers engaged in a children’s service or early childhood service will be paid for two hours if they are engaged for between zero and two hours, four hours if they are engaged for between two and four hours, and a full day if they are engaged for a period in excess of four hours.

· An employee who is a teacher and an educational leader will be paid the allowances prescribed in the Teachers Award if the number of students in the service increases beyond 299 at any point.

· Schedule E of the Miscellaneous Award 2020 is incorporated into the Agreement and its provisions will apply to trainees to the extent that it provides a more favourable outcome than that under a term of the Agreement.

· Employees will not be engaged on a weekend or a public holiday.

A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

The UWU, 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) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 December 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved an application by the United Workers Union for the approval of the Noarlunga Community Children’s Centre Inc Collective Agreement 2022. This application was heard in the Fair Work Commission, a body established under the Fair Work Act 2009 to administer and enforce workplace relations legislation in Australia. The union and the employer sought to have the agreement, which outlined the terms and conditions of employment for staff, certified as a registered agreement under the Act. This certification is necessary to ensure that the agreement complies with the relevant legislative provisions and to provide a mechanism for resolving disputes that may arise from its implementation.

The primary legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act and the Fair Work Regulations 2009. Specifically, the Commission needed to determine if the agreement was made in good faith, if it contained the minimum entitlements prescribed by the Act and the relevant award, and if it complied with the provisions relating to the certification of agreements. Additionally, the Commission considered whether the agreement contained terms that were contrary to public policy or were otherwise unlawful.

In its decision, the Commission found that the agreement was made in good faith and contained the minimum entitlements required by the Act and the relevant award. The Commission also determined that the agreement complied with the relevant legislative provisions and did not contain any terms that were contrary to public policy or unlawful. The Commission certified the agreement as a registered agreement, effective from the date of the decision. The Commission's decision was based on its assessment of the evidence presented by the parties and its interpretation of the relevant legislative provisions.

The Commission certified the Noarlunga Community Children’s Centre Inc Collective Agreement 2022 as a registered agreement, effective from the date of the decision. This certification ensures that the agreement will be recognised as a valid and enforceable contract between the employer and the union, and provides a mechanism for resolving disputes that may arise from its implementation. The decision provides clarity for the parties and ensures that the agreement complies with the relevant legislative provisions.

Noarlunga Community Children’s Centre Incorporated

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established