Application by United Workers' Union

[2024] FWCFB 455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Application by United Workers’ Union

(AG2024/4790)

EARLY CHILDHOOD EDUCATION AND CARE MULTI-EMPLOYER AGREEMENT 2024-2026
CHILDREN’S SERVICES
JUSTICE HATCHER, PRESIDENT DEPUTY PRESIDENT MASSON DEPUTY PRESIDENT EASTON	MELBOURNE, 10 DECEMBER 2024

Application for approval of the Early Childhood Education and Care Multi-Employer Agreement 2024-2026.

The United Workers’ Union (UWU) has made an application pursuant to s 185 of the Fair Work Act 2009 (FW Act) for approval of a supported bargaining agreement known as the Early Childhood Education and Care Multi-Employer Agreement 2024-2026 (Agreement). The Agreement is to apply to 60 employers in the early childhood education and care sector and their employees.

On 9 December 2024 we sent the bargaining representatives a list of concerns with respect to the Agreement’s compliance with the better off overall test (BOOT) requirement in s 186(2)(d) of the FW Act. The employers to whom the Agreement will apply have provided undertakings to address a number of the identified concerns. We are 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. No bargaining representative opposed acceptance of the undertakings. Accordingly, we accept the undertakings. On the basis of the undertakings, we are satisfied that the Agreement passes the BOOT.

We are satisfied that each of the requirements of ss 186, 187, and 188 of the FW Act as are relevant to this application for approval have been met.

The Agreement does not contain a flexibility term that meets the requirements of s 203 of the FW Act. Pursuant to s 202(4) of the FW Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement.

The UWU, the Australian Education Union (AEU) and the Independent Education Union of Australia (IEU), being bargaining representatives for the Agreement, have given notice under s 183 that they want the Agreement to cover them. In accordance with s 201(2) of the FW Act we note that the Agreement covers the UWU, the AEU and the IEU.

The Agreement is approved and, in accordance with s 54 of the FW Act, will operate from 17 December 2024. The nominal expiry date of the Agreement is 30 November 2026.

We will publish full reasons for this decision in due course.

PRESIDENT

Appearances:

L Harrison with S Oski for the United Workers’ Union.

A Zahra for the Australian Education Union.

M Aird for the Independent Education Union of Australia.

N Ward with P Mondo for DMP Child Care Association Inc, 3 Bears Cottage Pty Ltd, CBF Childcare Pty Ltd, Windybanks Pty Ltd, Starfish Childcare Pty Ltd, Starfish Childcare Nunawading Pty Ltd, Starfish Childcare Springvale Pty Ltd, Starfish Childcare Clayton Pty Ltd, Starfish Childcare Reservoir Pty Ltd, Starfish Essendon Pty Ltd, Midi Property Investment Pty Ltd, Peacock Street Long Day Care Pty Ltd, Mondo Corporation Pty Ltd, Village Kids Childrens Centre – Domain Pty Ltd, Village Kids Childrens Centre – Townsville Pty Ltd, Educating Kids Childrens Centre Pty Ltd, Child Care Services Australia Pty Ltd, Child Care Services SA Pty Ltd, Bear Childcare Pty Ltd, Little Scholars School of Early Learning (Nerang) Pty Ltd, Little Scholars School of Early Learning (Ashmore) Pty Ltd, Little Scholars School of Early Learning (Yatala) Pty Ltd, Little Scholars School of Early Learning (Stapylton) Pty Ltd, Little Scholars School of Early Learning (Deception Bay) Pty Ltd, Little Scholars School of Early Learning (Redland Bay) Pty Ltd, Little Scholars School of Early Learning (Burleigh) Pty Ltd, Little Scholars School of Early Learning (Redland Bay South) Pty Ltd, Little Scholars School of Early Learning (George St) Pty Ltd, Little Scholars School of Early Learning (Pacific Pines) Pty Ltd, Little Scholars School of Early Learning (Ormeau) Pty Ltd, Little Scholars School of Early Learning (Ormeau 2) Pty Ltd, Little Scholars School of Early Learning (Ormeau Village) Pty Ltd, Organic Seedlings Education Pty Ltd, Early Years Learning and Development Pty Ltd, Radiam Early Learning Pty Ltd, North Epping Early Learning Pty Ltd and Clovel Childcare & Early Learning Centre Granville Pty Ltd.

L Stevens for Community Child Care Association Inc, Community Early Learning Australia Limited, North Epping Early Learning Pty Ltd, Ashwood Children’s Centre Inc., Coburg Children’s Centre Incorporated, Derby Street Children’s Centre Incorporated, The Lady Gowrie Child Centre (Melbourne) Inc, Hawthorn Early Years Incorporated, Hillbank Community Children’s Centre Incorporated, Unley Community Child Care Centre Inc, Yawarra Children’s Services, Amy Hurd Early Learning Centre Inc, Balranald Early Learning Centre Inc, Believe Playschool Pty Ltd, Bermagui Preschool Co-operative Society Ltd, The Trustee for Ross-Clarke Family Trust, Childcare Australia United Ltd, Kirrawee Child Care Centre Pty Ltd, Little Mate Pty Ltd, Edgeworth Child Care Centre Inc, Glendale Early Education Centre Inc, Koala Long Day Care – Sutherland Hospital Ltd, The Trustee for S&N Clayton Family Trust, Gowrie NSW and Big Fat Smile Group Ltd.

R Beckett for G8 Education Limited.

Hearing details:

2024.

Melbourne and Sydney, by video using Microsoft Teams:
10 December.

Written submissions:

United Workers’ Union: 10 December 2024.

Printed by authority of the Commonwealth Government Printer

The United Workers' Union applied for approval of the Early Childhood Education and Care Multi-Employer Agreement 2024-2026 under section 185 of the Fair Work Act 2009. The proposed agreement was set to apply to 60 employers within the early childhood education and care sector and their employees. The Commission had previously identified concerns about the Agreement's compliance with the better off overall test (BOOT) requirement in section 186(2)(d) of the Fair Work Act. The employers agreed to address these concerns through undertakings, which the Commission found would not cause financial detriment to any employee and would not substantially change the Agreement. The Commission concluded that the Agreement met all relevant requirements of the Fair Work Act.

The Fair Work Commission needed to determine if the Agreement met the statutory requirements for approval under the Fair Work Act, including whether it satisfied the BOOT, as well as other relevant provisions. The Commission also had to consider whether the Agreement contained a flexibility term as required by section 203 of the Act, and whether the Agreement would cover the bargaining representatives. The Commission was required to ensure that the Agreement was in compliance with the law and would benefit the employees it covered.

The Commission found that the Agreement met all the statutory requirements for approval. The Commission accepted the employers' undertakings to address the concerns about the Agreement's compliance with the BOOT. The Commission was satisfied that the Agreement met the requirements of sections 186, 187, and 188 of the Fair Work Act. The Commission also determined that the Agreement did not contain a flexibility term, but that the model flexibility term prescribed by the Fair Work Regulations would apply. The Agreement was approved and will operate from 17 December 2024 until 30 November 2026.

The Fair Work Commission approved the Early Childhood Education and Care Multi-Employer Agreement 2024-2026. The Agreement will apply to the 60 employers in the early childhood education and care sector and their employees. The Agreement will operate from 17 December 2024 and expire on 30 November 2026. The Commission will publish full reasons for its decision in due course.

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