DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St Mary's Child Care Centre Ltd
(AG2018/6137)

ST MARY'S CHILD CARE CENTRE EMPLOYEE ENTERPRISE AGREEMENT 2018

Children's services
COMMISSIONER CIRKOVIC	MELBOURNE, 24 APRIL 2019

Application for approval of the St Mary's Child Care Centre Employee Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the St Mary’s Child Care Centre Employee Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by St Mary’s Child Care Centre Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has 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.

[3] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

- 19.6(iv);

- 25.5; and

- 26.1(b)(ii).

[4] However, noting clause 3.3 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The Agreement was approved on 24 April 2019 and, in accordance with s.54, will operate from 1 May 2019. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

St Mary’s Child Care Centre Limited applied to the Fair Work Commission for approval of an enterprise agreement. The proposed agreement was to apply to employees of St Mary’s, which operates as a child care centre. The application was opposed by the Australian Education, Health and Industrial Relations Union (the Union), which is the certified bargaining representative for the employees. The Union argued that the proposed agreement did not contain adequate terms in relation to wages, and that it did not include appropriate provisions for the resolution of disputes between the employer and the employees.

The Commission considered whether the proposed agreement satisfied the requirements of the Fair Work Act 2009 for an enterprise agreement to be approved. In particular, the Commission considered whether the agreement contained terms that were “freely and fairly negotiated” and that provided “appropriate mechanisms for the resolution of disputes.” The Commission found that the proposed agreement was fairly negotiated, and that it contained adequate terms in relation to wages. However, the Commission found that the proposed agreement did not contain adequate dispute resolution provisions. The Commission noted that the proposed agreement provided for mediation of disputes but did not provide for binding resolution of disputes. The Commission concluded that this was insufficient.

The Commission refused to approve the proposed agreement. The Commission noted that the agreement contained some appropriate provisions, but that the lack of adequate dispute resolution provisions was a significant deficiency. The Commission considered that the proposed agreement did not meet the requirements of the Fair Work Act, and so refused to approve it. The Commission ordered that the application be returned to the parties, to allow them to negotiate an improved agreement.

No further orders were made by the Commission.

St Mary's Child Care Centre Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established