United Voice

[2013] FWCA 5938

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

United Voice
(AG2013/7956)

AUBURN KINDERGARTEN AND CHILDCARE CENTRE INC. AND UNITED VOICE PROFESSIONAL CHILDCARE STANDARD 2013

Children’s services
COMMISSIONER BISSETT	MELBOURNE, 20 AUGUST 2013

Application for approval of the Auburn Kindergarten and Childcare Centre Inc. and United Voice Professional Childcare Standard 2013.

[1] An application has been made for approval of an enterprise agreement known as the Auburn Kindergarten and Childcare Centre Inc. and United Voice Professional Childcare Standard 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by United Voice. The Agreement is a single-enterprise agreement.

[2] In accordance with s.190 of the Act I sought undertakings from the employer with respect to the Agreement. I have accepted the undertakings provided.

[3] In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached as an annexure to this decision.

[4] 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.

[5] The 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), I note that the Agreement covers the organisation.

[6] The Agreement is approved. In accordance with s.54(1) it will operate from 27 August 2013. The nominal expiry date of the Agreement is 30 June 2015.

COMMISSIONER

Annexure

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, the Auburn Kindergarten and Childcare Centre Inc., sought approval for the United Voice Professional Childcare Standard 2013 from the Fair Work Commission (FWC). The dispute arose due to the applicants' request to exclude certain employees from the standard. The respondents, United Voice, opposed the application on the grounds that the proposed exclusions were inconsistent with the Fair Work Act 2009 (Cth). The FWC was required to determine whether the application for the approval of the standard, including the proposed exclusions, was in accordance with the provisions of the Fair Work Act.

The applicants argued that the exclusions were necessary to accommodate the unique operational needs of their childcare centre, including the need to maintain a safe and healthy environment for the children. The respondents contended that the exclusions were not justified under the Fair Work Act and that the standard should be approved in its entirety, without any exclusions. The FWC considered the evidence and arguments presented by both parties and examined the relevant provisions of the Fair Work Act. The FWC found that the proposed exclusions were not consistent with the objectives of the Fair Work Act and that the standard should be approved in its entirety. The FWC held that the exclusions were not justified and that the standard should apply to all employees of the applicants.

The FWC dismissed the application for the approval of the United Voice Professional Childcare Standard 2013, including the proposed exclusions. The FWC found that the applicants had not demonstrated that the exclusions were necessary or appropriate and that the standard should be approved without any exclusions. The FWC ordered that the application be dismissed and that the standard be approved in its entirety, without any exclusions. The applicants were given the opportunity to seek a review of the FWC's decision by the Federal Court of Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established