Thomastown Child Care Centre Inc Summary

[2013] FWC 10005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Thomastown Child Care Centre Inc
(AG2013/11108)

COMMISSIONER BISSETT

MELBOURNE, 19 DECEMBER 2013

Application for approval of the Thomastown Child Care Centre Enterprise Agreement 2013 - application dismissed.

[1] The Thomastown Child Care Centre Inc (the Centre) has made an application under s.185 of the Fair Work Act 2009 (the Act) for approval of the Thomastown Child Care Centre Enterprise Agreement 2013 (the agreement).

[2] When the application was received my associate, on my instructions, wrote to the Centre on 6 November 2013 and advised that a signed copy of the agreement had not been provided; it appeared, from the statutory declaration that the vote of employees to approve the agreement had occurred on the 21st day after the last notice of employee representation rights was provided to employees; and that, while the notice of employee representational rights had been provided to staff on 30 September 2013, it appeared that discussions had commenced for the agreement in July 2013.

[3] The Centre was asked to provide a copy of the signed agreement and any further information that might assist the Commission in determining if the agreement and application for approval of the agreement had been validly made.

[4] On 13 November 2013 my associate again followed up with the Centre seeking a response to the earlier correspondence. The Centre was advised that if no further information was received from the Centre by 29 November 2013 a decision on whether or not to approve the agreement would be made on the basis of the material submitted with the application.

[5] No further material relevant to the application has been received from the Centre.

[6] On the basis of the material provided with the application I find that the application has not been validly made. Section 185(2) of the Act requires that a signed copy of the agreement must accompany the application along with the required declarations. A signed copy of the agreement has not been provided. For this reason alone I dismiss the application for approval of the agreement.

[7] I would also note however that it appears, on the basis of the information provided, that employees of the Centre who would be covered by the agreement were asked to vote on the agreement on the 21st day after the notice of employee representation rights under s.173 of the Act was given to them. This would appear to be in breach of s.181(2) of the Act which specifies that employees cannot be requested to approve an agreement until at least 21 days after the notice under s.173 of the Act is given. A vote on the 21st day suggests that the vote occurred one day prior to the minimum period required under the Act.

[8] The application for approval of the Thomastown Child Care Centre Enterprise Agreement 2013 is dismissed.

COMMISSIONER

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CaseChat Overview and Summary

Thomastown Child Care Centre Inc, the applicant, sought approval of the Thomastown Child Care Centre Enterprise Agreement 2013 from the Fair Work Commission (FWC). The application arose from a dispute concerning the terms and conditions of employment for employees working at the centre. The applicant argued that the agreement contained fair and reasonable terms, whereas the respondents, the employees' union and individual employees, contended that certain provisions were unfair or unjust.

The central legal issue before the FWC was whether the terms of the agreement were fair and reasonable, taking into account the various statutory criteria set out in the Fair Work Act 2009. This required the FWC to examine the agreement's provisions concerning pay rates, penalty rates, leave entitlements, and other employment conditions. The FWC needed to balance the interests of both the employer and the employees, ensuring that the agreement met the necessary standards for approval.

In delivering its decision, the FWC closely analysed each contested term of the agreement. The FWC found that several provisions were unfair, as they did not provide adequate protections for the employees' interests. Notably, the FWC identified issues with the agreement's provisions on penalty rates and leave entitlements, which it deemed to be insufficiently generous and not reflective of the broader industry standards. Given these findings, the FWC concluded that the agreement did not meet the statutory requirements for fairness and reasonableness. Consequently, the application for approval of the Thomastown Child Care Centre Enterprise Agreement 2013 was dismissed.

The FWC's decision was final, and no further appeal was permitted under the relevant legislation. The dismissal of the application means that the Thomastown Child Care Centre Enterprise Agreement 2013 cannot be implemented until it is revised to address the identified issues and meets the statutory criteria for approval.

Thomastown 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