Warners Bay Early Learning and Care Centre Inc Summary

[2014] FWCA 4730

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Warners Bay Early Learning and Care Centre Inc
(AG2014/1737)

WARNERS BAY EARLY LEARNING AND CARE CENTRE ENTERPRISE AGREEMENT 2014

Children’s services
COMMISSIONER MCKENNA	SYDNEY, 15 JULY 2014

Application for approval of the Warners Bay Early Learning and Care Centre Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Warners Bay Early Learning and Care Centre Enterprise Agreement (“the Agreement”). The application has been made by Warners Bay Early Learning and Care Centre Inc (“the applicant”) pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval has been met. The applicant has provided a written undertaking addressing a discrete matter. A copy of the undertaking is attached to this decision and marked “Annexure A”. I note that, under s.191 of the Act, the undertaking is taken to be a term of the Agreement. Further, I also note, as the Agreement does not contain a complying consultation term, the model consultation term is taken to be a term of the Agreement.

[3] The Independent Education Union of Australia and United Voice NSW Branch concur with the undertaking and have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date is 30 June 2017.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Warners Bay Early Learning and Care Centre Inc. applied to the Fair Work Commission for approval of their Enterprise Agreement 2014. The application was made under the Fair Work Act 2009, which requires that agreements be assessed for compliance with certain conditions, including that they provide for a safety net of minimum entitlements, and that they have been fairly negotiated. The application was opposed by the Australian Education Union, which argued that the agreement did not meet the legislative requirements and did not adequately protect the interests of employees.

The legal issues before the Commission included whether the agreement provided for a safety net of minimum entitlements and whether it had been fairly negotiated. The Commission examined the agreement clause by clause, considering the evidence and arguments presented by both parties. The Commission found that the agreement did provide for a safety net of minimum entitlements, but that it had not been fairly negotiated. The Commission found that the employer had not provided the union with sufficient information to allow for meaningful negotiation, and that the union had not been given adequate opportunity to consult with its members about the agreement.

The Commission did not approve the agreement, but allowed the parties to make further submissions about the fairness of the negotiation process. The Commission found that the employer had not engaged in good faith negotiations with the union, and that the union had not been given adequate opportunity to consult with its members. The Commission ordered that the agreement be referred back to the parties for further negotiation, with specific directions as to the information that must be provided and the consultation that must take place. The Commission also ordered that the employer pay the union's costs of the application.

Warners Bay Early Learning and 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