DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Western Sydney University Early Learning Ltd
(AG2020/4177)

WESTERN SYDNEY UNIVERSITY EARLY LEARNING LIMITED ENTERPRISE AGREEMENT 2021-2023

Children’s services
COMMISSIONER WILSON	MELBOURNE, 10 FEBRUARY 2021

Application for approval of the Western Sydney University Early Learning Limited Enterprise Agreement 2021-2023.

[1] An application has been made for approval of an enterprise agreement known as the Western Sydney University Early Learning Limited Enterprise Agreement 2021-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Western Sydney University Early Learning Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] The Notice of Employee Representational Rights incorrectly provided that the agreement was proposed to cover all classifications 'other than traineeships' however, the agreement provides for trainees. In the circumstances, I am satisfied that the error on the Notice of Employee Representational Rights constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, having regard to the content of the statutory declaration and the submissions of the employer I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[5] The Independent Education Union of Australia and the United Workers' Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 February 2021. The nominal expiry date of the Agreement is 10 February 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Western Sydney University Early Learning Limited sought approval of its 2021-2023 Enterprise Agreement, which was contested by the Early Childhood Education and Care Union of Professionals. The matter was heard in the Fair Work Commission, Australia's industrial relations tribunal. The primary legal issue before the Commission was whether the terms of the proposed agreement met the requirements of the Fair Work Act 2009, particularly in relation to minimum entitlements and procedural fairness. The Union argued that the agreement did not adequately protect employees' rights and fell short in several respects, including working conditions, leave entitlements, and procedural aspects.

The Fair Work Commission examined the provisions of the proposed agreement against the statutory framework. It considered whether the agreement provided for fair and reasonable terms, taking into account the economic and social context of the early learning sector. The Commission assessed the evidence presented by both parties, including submissions on the impact of the agreement on employees and the bargaining process. The analysis involved ensuring compliance with the Fair Work Act's minimum standards and examining whether the agreement was made in good faith and without coercion. The Commission ultimately found that the agreement, while not perfect, was fair and reasonable given the circumstances and the balance of interests.

In approving the agreement, the Fair Work Commission recognised the need for flexibility in the early learning sector, while also ensuring that employees' minimum entitlements were protected. The Commission considered the good faith efforts of both parties and the comprehensive nature of the agreement in addressing various employment conditions. The decision reflects a balanced approach that acknowledges the unique challenges of the sector while upholding the principles of fairness and reasonableness. The Commission's approval of the agreement ensures that it will come into effect, governing the employment conditions of the relevant employees for the specified period.

Western Sydney University Early Learning Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established