The Rainbow Children’s Centre Inc

[2020] FWC 1122

[2020] FWC 1122

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Rainbow Children’s Centre Inc
(AG2019/4658)

DEPUTY PRESIDENT MANSINI MELBOURNE, 28 FEBRUARY 2020

Application for approval of the Rainbow Children's Centre Inc. Enterprise Agreement.

[1] The Rainbow Children’s Centre Inc has applied for approval of a single enterprise agreement known as the Rainbow Children's Centre Inc. Enterprise Agreement (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The application as made included obvious errors and was incomplete. Those errors were raised by the Commission, in addition to concerns about whether the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and the Agreement passes the “better off overall” test. Some further information was provided in relation to these concerns but did not sufficiently address all of the concerns.

[3] The Commission wrote to the Applicant (and copied the employee bargaining representatives) and identified its ongoing, unresolved concerns and afforded a further opportunity to respond. Specifically, by 4pm on 16 January 2020, the Applicant was invited to address the following:

a) The Applicant has not described what (if any) steps were taken to give employees, or to ensure the relevant employees had access to, a copy of the Agreement and any materials incorporated by reference, as required by s.180(2) of the Act;

b) The Commission is not able to be satisfied that the relevant employees to be covered by the Agreement would be better off overall than if the relevant reference instruments applied, including because the Applicant either has not addressed the Commission’s concerns in this respect or has failed to provide an undertaking in the required form in accordance with the Act and Regulation 2.07; and

c) Further, the Applicant’s responses to the Commission’s concerns about the “better off overall” test give rise to concerns that:

•  the explanation of the Agreement that was provided to the relevant employees was not appropriate; and

•  even if the various proposed undertakings were provided in the appropriate form in accordance with the Act and Regulation 2.07, the number of undertakings required appears to amount to substantial changes to the Agreement such that those undertakings may not be accepted pursuant to s.190.

[4] No response was received as directed.

[5] At 10:15am on 20 January and 10:27am and 10:28am on 21 January 2020, the Commission attempted to contact the Applicant on the nominated mobile phone number but could not be reached, with no option to leave a voicemail message.

[6] On 5 February 2020, the Commission again wrote to the Applicant (copying the employee bargaining representatives), advising that the Commission had not received any response to its identification of the ongoing concerns or its attempts to contact the Applicant by phone. The parties were advised that, on the material presently before the Commission, the application was not capable of being approved however would be afforded a further opportunity to respond by 5pm on 7 February 2020. The parties were also on notice that if no response was received by that time, the Commission would proceed to determine the application on the materials that are before it.

[7] Since 5 February 2020 and as at the date of this decision, no further response has been received and the Commission has no record of an attempt by the parties to communicate with the Commission about this matter. Whilst it would appear that the Applicant no longer intends to pursue the application, the application has not been withdrawn.

[8] Accordingly, I have assessed the application on the materials that are before the Commission.

[9] On the basis of the material contained in the application and further information provided on request of the Commission, particularly the concerns identified at paragraph 3 of this decision which remain unresolved, I am not able to be satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[10] For the above reasons, the application is dismissed.

DEPUTY PRESIDENT

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