Very Special Kids

[2019] FWCA 5119

[2019] FWCA 5119

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Very Special Kids
(AG2019/1403)

VERY SPECIAL KIDS AND FAMILY SUPPORT TEAM ENTERPRISE AGREEMENT 2018-2021

Social, community, home care and disability services
COMMISSIONER CIRKOVIC	MELBOURNE, 23 JULY 2019

Application for approval of the Very Special Kids and Family Support Team Enterprise Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the Very Special Kids and Family Support Team Enterprise Agreement 2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Very Special Kids. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 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 ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Notice of Employee Representational Rights sent by the employer was not in strict compliance with the form prescribed by the regulations. 1 In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

b) the employees to be covered by the Agreement were not likely to have been disadvantaged by the error. 2

[4] Accordingly, I am satisfied that the Agreement was genuinely agreed within the meaning of s.188(2) of the Act.

[4] I observe that clause 18.2 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.5 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] The Australian Municipal, Administrative, Clerical and Services Union 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 was approved on 23 July 2019 and, in accordance with s.54, will operate from 30 July 2019. The nominal expiry date of the Agreement is 31 December 2021.

COMMISSIONER

 1   See s.174 (1A).

 2   [2019] FWCFB 318.

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