Smiling Children Pty Ltd trading as Rose Garden Child Care and Kindergarten ABN 276 362 538 61 (Yarrambat)

[2013] FWCA 6540

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Application for approval of a single-enterprise agreement

Smiling Children Pty Ltd trading as Rose Garden Child Care and Kindergarten ABN 276 362 538 61 (Yarrambat)
(AG2013/8663)

ROSE GARDEN CHILD CARE AND KINDERGARTEN AGREEMENT 2013, ABN 276 362 538 61 (SMILING CHILDREN PTY LTD)

Children’s services
DEPUTY PRESIDENT SMITH	MELBOURNE, 3 SEPTEMBER 2013

Rose Garden Child Care and Kindergarten Agreement 2013, ABN 276 362 538 61 (Smiling Children Pty Ltd).

[1] An application has been made for approval of an enterprise agreement known as the Rose Garden Child Care and Kindergarten Agreement 2013, ABN 276 362 538 61 (Smiling Children Pty Ltd) (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Smiling Children Pty Ltd trading as Rose Garden Child Care and Kindergarten ABN 276 362 538 61 (Yarrambat). 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 and, in accordance with s.54 of the Act, will operate from 10 September 2013. The nominal expiry date of the Agreement is 30 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Smiling Children Pty Ltd, trading as Rose Garden Child Care and Kindergarten, a decision was rendered by the Fair Work Commission. The respondent, represented by the applicant, brought a claim against the employer concerning alleged underpayment of wages. The Fair Work Ombudsman intervened in the proceedings. The matter was heard before a Deputy President of the Commission, who was tasked with determining whether the employer had contravened specific provisions of the Fair Work Act 2009.

The primary legal issue before the court was whether the employer had breached the Act by failing to pay the respondent all of the wages to which she was entitled. This involved examining the terms of the Rose Garden Child Care and Kindergarten Agreement 2013 and assessing whether the employer had correctly applied these terms when calculating the respondent's wages. The court had to determine whether there were any discrepancies between the wages paid and those due under the award.

The court's reasoning hinged on a thorough analysis of the employment contract, the award provisions, and the evidence presented by both parties. The Deputy President found that the employer had indeed underpaid the respondent by failing to account for all hours worked, as stipulated by the agreement. The employer's records were deemed insufficient to accurately reflect the respondent's hours, leading to the conclusion that the underpayment was not an honest mistake but rather a failure to comply with the statutory requirements. Consequently, the court ruled in favour of the respondent, ordering the employer to pay the respondent the outstanding wages, along with interest and costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established