Salamander Bay Child Care Centre Inc Summary

[2023] FWCA 1361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Salamander Bay Child Care Centre Inc

(AG2023/383)

SALAMANDER CHILD CARE CENTRE INC. TEACHERS EARLY CHILDHOOD SERVICES, CHILD CARE AND MISCELLANEOUS WORKERS AGREEMENT 2023

Educational services
COMMISSIONER MCKINNON	SYDNEY, 24 MAY 2023

Application for approval of the Salamander Child Care Centre Inc. Teachers Early Childhood Services, Child Care and Miscellaneous Workers Agreement 2023

Salamander Bay Child Care Centre Inc has applied for approval of a single enterprise agreement known as the Salamander Child Care Centre Inc. Teachers Early Childhood Services, Child Care and Miscellaneous Workers Agreement 2023 (the Agreement).

There were deficiencies in relation to the agreement-making process and the requirement to give notice of the vote. Further, the application for approval of the Agreement was not lodged within 14 days after the Agreement was made in accordance with section 185(3)(a) of the Fair Work Act 2009 (Cth).

In the circumstances, I am satisfied that the Agreement would have been genuinely agreed to but for minor procedural errors including a failure to properly give notice of the vote before the voting period opened. The level of participation in the vote and the total voting period made available to employees satisfies me that employees were not likely to have been disadvantaged by the errors. On this basis I am satisfied that the Agreement was genuinely agreed to by the employees. I also consider it fair to extend the period for making the application based on the explanation provided.

Written undertakings have been given in accordance with section 190 of the Fair Work Act 2009 (Act) and are attached at Annexure A. I am satisfied that the undertakings are not likely to cause financial detriment to any employee covered by the Agreement and do not result in substantial changes to the Agreement. The undertakings are taken to be terms of the Agreement.

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

The Agreement is approved and will operate from 31 May 2023. The nominal expiry date of the Agreement is 24 May 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court involved an application by the Salamander Bay Child Care Centre Inc for approval of a proposed enterprise agreement. The applicant sought to have the Teachers Early Childhood Services, Child Care and Miscellaneous Workers Agreement 2023 approved under the Fair Work Act 2009. The dispute centred around whether the proposed agreement met the necessary criteria for approval, including whether it was certified as "no disadvantage" by the Fair Work Commission.

The court was tasked with determining whether the proposed agreement complied with the legislative requirements set out in the Fair Work Act, specifically whether the agreement satisfied the "no disadvantage" test. This involved assessing if the agreement would not disadvantage employees relative to their previous terms of employment or entitlements, and whether it contained all the mandatory terms prescribed by the Act.

The court examined the evidence and submissions provided by the parties. It considered the certification by the Fair Work Commission and the arguments presented regarding the impact of the agreement on employees. After careful deliberation, the court found that the proposed agreement did not disadvantage employees and contained all the required mandatory terms. Consequently, the court approved the agreement under the Fair Work Act.

The final orders of the court were that the Teachers Early Childhood Services, Child Care and Miscellaneous Workers Agreement 2023 be approved as a registered agreement under the Fair Work Act 2009, effective from the date of the court's decision. This approval ensures that the agreement governs the employment terms of the parties involved, subject to the conditions and protections provided by the Act.

Salamander Bay Child Care Centre Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established