Pennant Hills War Memorial Children's Centre Association Inc.

[2024] FWCA 1427

[2024] FWCA 1427

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Pennant Hills War Memorial Children’s Centre Association Inc.

(AG2024/878)

PENNANT HILLS WAR MEMORIAL CHILDREN’S CENTRE ASSOCIATION INC. CHILD CARE EMPLOYEE COLLECTIVE AGREEMENT 2023

Educational services
DEPUTY PRESIDENT GRAYSON	SYDNEY, 19 APRIL 2024

Application for approval of the Pennant Hills War Memorial Children’s Centre Association Inc. Child Care Employee Collective Agreement 2023

Introduction

1. Pennant Hills War Memorial Children’s Centre Association Inc. (the Employer) has made an application for approval of an enterprise agreement known as the Pennant Hills War Memorial Children’s Centre Association Inc. Child Care Employee Collective Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 3 August 2022, the genuine agreement requirements for agreement approval in Part 2-4 of the Act, as it was just before 6 June 2023, apply to the present application. Further, as the Agreement was made on 8 March 2024 the better off overall test requirements in Part 2-4 of the Act as amended on 6 June 2023 apply.

Notification of time, place and method of vote

1. The notification of place and method of vote occurred on 25 February 2024. However, employees were not notified of the time that the vote would commence until it did commence by email on 4 March 2024, concluding on 8 March 2024. Whilst all other elements of the notification met the requirements of the Act, this notification of the time of the commencement of voting was not 7 clear days in advance as required by s.180(3) of the Act. The Employer provided submissions that this matter did not result in disadvantage to employees.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

Model Flexibility Term

1. The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to above, 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.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 April 2024. The nominal expiry date of the Agreement is 31 January 2026.

DEPUTY PRESIDENT

<AE524300  PR773711>

[1] [2019] FWCFB 318.

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