Albany Creek Kindergarten Association Incorporated T/A Albany Creek Kindergarten

[2025] FWCA 307

[2025] FWCA 307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Albany Creek Kindergarten Association Incorporated T/A Albany Creek Kindergarten

(AG2024/5046)

ALBANY CREEK KINDERGARTEN EARLY CHILDHOOD ENTERPRISE AGREEMENT 2024

Educational services
DEPUTY PRESIDENT DOBSON	BRISBANE, 24 JANUARY 2025

Application for approval of the Albany Creek Kindergarten Early Childhood Enterprise Agreement 2024

[1]This decision deals with an application made for approval of an enterprise agreement known as the Albany Creek Kindergarten Early Childhood Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Albany Creek Kindergarten Association Incorporated (the Applicant). The Agreement is a single enterprise agreement.

[2]The Notice of Employee Representational Rights (NERR) distributed to employees appears to explain to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

[3]The Agreement does not contain a delegate’s rights term, pursuant to s.205A, and on that basis the term in the relevant modern award will apply.

[4]Correspondence was sent to the Employer by my Chambers on 14 January 2025 raising a number of concerns including inferior conditions for shift workers. The Applicant has advised that it does not engage shift workers. I am consequently satisfied that per s. 193A(6A) of the Act shift workers are not a type of employment that is reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test. I note that should this change that pursuant to s.227A of the Act, application may be made for the future reconsideration of whether the agreement passes the BOOT during the life of the Agreement.

[5]On the basis of the material contained in the application and accompanying declarations, having regard to the Statement of Principles,[2] I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

[6]I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•   Clause 1.11 – Requests for flexible working arrangements

•   Clause 5.4 – Compassionate Leave eligibility

However, noting clause 1.2.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Independent Education Union (IEU QNT) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the IEU QNT.

2. The Agreement is approved and will operate from 31 January 2025.  The nominal expiry date of the Agreement is 1 July 2027.

   
   DEPUTY PRESIDENT

   
   

   [1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

   [2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

   Printed by authority of the Commonwealth Government Printer

   <AE527766  PR783680>