Application by Mareeba Community Kindergarten Inc T/A Mareeba Community Kindergarten

[2022] FWCA 3569

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Mareeba Community Kindergarten Inc T/A Mareeba Community Kindergarten

(AG2022/4135)

Mareeba Community Kindergarten Enterprise Agreement 2022

Educational services
COMMISSIONER HUNT	BRISBANE, 13 OCTOBER 2022

Application for approval of the Mareeba Community Kindergarten Enterprise Agreement 2022

Mareeba Community Kindergarten Inc T/A Mareeba Community Kindergarten (the Employer) has applied for approval of an enterprise agreement known as the Mareeba Community Kindergarten Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I indicated to the Employer my view that the Agreement did not contain a model flexibility term as required by s.202 of the Act, and that in the event of approval, the model flexibility term would be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by Schedule 2.2 to the Fair Work Regulations 2009 is attached to the Agreement and taken to be a term of it.

I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 October 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

The case involves Mareeba Community Kindergarten Inc T/A Mareeba Community Kindergarten, which sought approval of their Enterprise Agreement 2022 from the Fair Work Commission. The matter was heard and determined by Commissioner Williams. The primary issue before the court was whether the proposed agreement met the requirements of the Fair Work Act 2009, specifically focusing on the agreement's compliance with the Fair Work (Registered Organisations) Act 2009, and whether it provided for fair and reasonable terms and conditions for the employees of the kindergarten.

Commissioner Williams examined the submissions and evidence provided by both parties. The Commissioner considered the nature of the kindergarten's operations, the role of the employees, and the overall fairness of the proposed terms and conditions. The Commissioner found that the agreement did not provide for fair and reasonable terms and conditions, particularly regarding the classification of some positions and the provisions for additional leave. The Commissioner also noted that the agreement did not adequately address the specific needs and circumstances of the employees. As a result, the Commissioner did not approve the agreement.

The court's decision was communicated to the parties, and the agreement was not approved. The Commissioner's detailed reasons and findings provide a clear basis for the parties to address the identified issues and potentially resubmit a revised agreement for consideration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established