Albany Creek Kindergarten Association Incorporated T/A Albany Creek Kindergarten

[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.

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.
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
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CaseChat Overview and Summary

The matter before the Court involved the Albany Creek Kindergarten Association Incorporated, trading as Albany Creek Kindergarten, which sought approval of its Early Childhood Enterprise Agreement for 2024. The application was made under the Fair Work Act 2009, and the Fair Work Commission was the relevant tribunal. The dispute centred on the appropriateness and fairness of the terms contained within the proposed agreement, particularly in relation to employee entitlements and conditions.

The primary legal issue before the Court was whether the agreement met the requirements for registration under the Fair Work Act. This involved assessing whether the agreement complied with the provisions concerning fair and reasonable terms, the process through which it was negotiated, and whether it adequately protected the interests of the employees. The Court also had to consider if the agreement contained terms that were inconsistent with the national safety and health standards.

In its decision, the Court thoroughly examined the negotiation process and the terms of the agreement. The Court found that the negotiation process was conducted in good faith and that the terms of the agreement were fair and reasonable. The agreement provided for appropriate conditions, entitlements, and safeguards that were consistent with the national safety and health standards. The Court was satisfied that the agreement did not contain any terms that would undermine the employees' rights or interests. Consequently, the Court approved the Albany Creek Kindergarten Early Childhood Enterprise Agreement 2024.

The Court's final order was that the application for approval of the Albany Creek Kindergarten Early Childhood Enterprise Agreement 2024 be granted. The agreement was to be registered and would come into effect on the date specified in the agreement, thereby providing a legally binding framework for the employment conditions of the kindergarten's staff.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Educational services
DEPUTY PRESIDENT DOBSON	BRISBANE, 24 JANUARY 2025