St Morris Community Child Care Centre Inc

[2019] FWCA 5917

[2019] FWCA 5917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St Morris Community Child Care Centre Inc
(AG2019/2833)

UNITED VOICE - ST MORRIS COMMUNITY CHILD CARE CENTRE ENTERPRISE AGREEMENT 2018

Children’s services
COMMISSIONER PLATT	ADELAIDE, 27 AUGUST 2019

Application for approval of the United Voice - St Morris Community Child Care Centre Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the United Voice - St Morris Community Child Care Centre Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by St Morris Community Child Care Centre Inc. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 22 August 2019.

[3] Upon review of the proposed Agreement, I identified a number of issues, including:

1. That clause 7.8.1.1.2 of the Agreement provides that an employee is entitled to a period of 12 months parental leave less any period of special maternity leave that the employee has taken. This is an additional limitation which is not contemplated by the Act.

2. That clause 7.4.2.2 and clause 7.4.4.2 of the Agreement provide that if an employee is sick whilst on annual leave, they will not be entitled to any additional days of annual leave to compensate for the sick days, unless the sick days are at least three and consecutive. This is an additional limitation which is not contemplated by the Act.

3. That clause 7.5 of the Agreement restricts an employee’s entitlement to compassionate leave to “permanent employees”. The constraint of this entitlement to permanent employees only appears to imply that casual employees will not be able to access compassionate leave, which they are entitled to receive under the Act.

4. That the Children’s Services Award 2010 (the Award) entitles a casual employee to a minimum of two hours engagement, and that the Agreement is silent in relation to this entitlement.

[4] I note that the issues identified in paragraphs 1 – 3 above can be regarded as being inconsistencies with the National Employment Standards (NES). However, the operation of clause 1.7.2 of the Agreement, which contains a NES precedence clause, resolves any inconsistency and ensures that employees will be entitled to parental, sick and compassionate leave in accordance with the NES.

[5] Issue 4 above identifies an omission within the Agreement. However, clause 1.7.1(b) of the Agreement has the effect that the Agreement is read in conjunction with the Award(s) and where the Agreement is silent as to minimum engagement periods the relevant Award provisions apply.

[6] 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.

[7] “United Voice”, 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2021.

COMMISSIONER

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