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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Very Special Kids and Family Support Team Enterprise Agreement 2018-2021. The applicants, representing the employer, sought the agreement's approval under the Fair Work Act 2009. The dispute centred on whether the agreement met the necessary requirements for approval, particularly regarding its compliance with the Fair Work Act and relevant regulations.

The court was tasked with determining whether the agreement provided for the terms and conditions of employment for the employees in a fair and balanced manner. This included assessing if the agreement addressed key employment aspects, such as wages, hours of work, and other conditions of employment. The court also examined whether the agreement had been formed without coercion and if it was genuinely negotiated between the parties. Additionally, the court considered if the agreement contained any terms that might be considered harsh, unjust, or unreasonable.

In making its decision, the Fair Work Commission found that the agreement was generally fair and balanced. The court acknowledged the efforts made by the parties to negotiate the terms of the agreement and concluded that it was not coercive. The agreement was deemed to comply with the requirements of the Fair Work Act, as it included provisions for wages, hours of work, and other necessary employment conditions. The court also noted that the agreement did not contain any terms that could be considered harsh, unjust, or unreasonable. Based on these findings, the court approved the agreement under the Fair Work Act.

The final orders of the court included the approval of the Very Special Kids and Family Support Team Enterprise Agreement 2018-2021, with the agreement to be registered with the Fair Work Commission. The court directed that the agreement would come into effect from the date of the decision and would remain in force until the end of the specified period, subject to any variations or amendments that may be agreed upon by the parties.

Very Special Kids

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established